When psychoanalysis meets Law and Evil Perversion and psychopathy in the forensic clinic

Chapter 13
When psychoanalysis meets Law and Evil Perversion and psychopathy in the forensic clinic

Jochem Willemsen and Paul Verhaeghe

Introduction: the polymorphous perversity of every subject versus Law and Evil

In short, Freud discovered what every nanny long knew, namely, that sexuality begins from childhood onwards, if in a very unique manner. There is no such thing as a genital instinct that irresistibly thrusts man toward woman and vice versa right from the start. It is a question not of human instincts, but of drives. The life of the drive develops through the component drives that are only later gathered under the coordinating flag of so-called genital sexuality. These drives are both partial and autoerotic. Partial means that they concentrate on certain bodily areas (oral, anal, genital … ) rather than on the body in its entirety. Autoerotic means that these drives focus first on parts of the subject’s body, not on that of the other. On the basis of these readily observable data, Freud concludes that our sexuality is grounded in a polymorphously perverse predisposition. Moreover, this polymorphously perverse predisposition is the basis of the original and universal predisposition of the human sexual drive.¹ Almost any ‘adult’ perverse trait can be observed in the child, putting perversion in a completely different light.² Consequently, according to Freudian theory, the distinction between ‘normal’ perverse traits and the perverse structure is not easy to make.

The combination between Kinsey and Freud provided a secure base to the sexual revolution and the accompanying liberalization in Western society. The net result is that almost every sexual interaction has become acceptable as long as there is mutual consent between the partners. Strangely enough, this means that we have returned to a society in which sexual deviation has become again synonymous with a crime! The nineteenth century sinner/criminal who was turned into a twentieth-century patient has now become a twenty-first-century perpetrator. The so-called liberalization has made things very unclear, because the ‘diagnostic’ criterion for sexual deviation has become more or less synonymous with the absence of informed consent between the partners. Hence the two main contemporary categories of sexual deviancy: rape and paedosexuality. Yet again, in a word: Evil.

A similar reduction shows its effects on another important concept in the forensic field: psychopathy. Throughout its history, this concept was often on the verge of being reduced to antisocial behaviour. When Prichard launched the term of moral insanity in 1835, he designated a group of patients with deficiencies in the affective faculty. To Prichard the term ‘moral’ referred primarily to the emotional and conative aspects of the psyche, as in ‘moral treatment’. Nevertheless, this diagnostic label owed much of its success to the systematic misinterpretation of the word ‘moral’ as referring to antisocial.³ In the second half of the nineteenth century, synonyms such as constitutional inferiority and degenerative insanity became very popular, expressing the idea that psychopathy is associated with innate evil. Although subsequent psychiatrists developed a more comprehensive concept of psychopathy, its judgemental undertones never disappeared. Popular media have taken over this narrow interpretation and continue to portray an image of the psychopath as a thoroughly bad criminal. This image, however, does not correspond with the current scientific notion of psychopathy, in which a set of personality features are defined that can be applied in a non-forensic context. Indeed, an eminent scholar in this area advanced Oskar Schindler, the saviour of hundreds of Jews, as a psychopath.⁴

The question we are facing now is how to understand perversion and psychopathy independently of this contemporary reduction, while at the same time acknowledging the link with the Law. Below we will address the description of the criminal behaviour of the pervert and the psychopath. But instead of focusing on the nature and frequency of this behaviour, and the chance of relapse, we will study the psychic dynamics that lead to such behaviour. Following this, the problem of perversion and psychopathy will be approached in separate steps, in which the Oedipal situation, and the relation to the Law and to language are described through Freudian-Lacanian theory. Where possible, we will use fragments of interviews conducted during our own ongoing research among male detainees. Yet, before we start, we must clarify our use of the concepts of perversion and psychopathy.

In psychoanalytic literature, psychopathy is often sided with perversion. In this chapter, however, we will advocate that perversion and psychopathy are two clearly distinct clinical tableaux, each having relevance in the forensic field.⁵ Perversion in the context of this chapter refers to the clinical structure as defined by Lacan, implying a specific relation towards the Other and a specific way of regulating the drives. We use the term of psychopathy in the way Robert Hare has conceptualized it. In the 1980s Hare began to lift this concept from a swamp of misconceptions and popular ideation by making a retour à Hervey Cleckley’s original work on the topic.⁶ In contrast to the common idea that a psychopath is simply a mad criminal, Hare’s elaboration consists of a specific constellation of interpersonal, affective, and lifestyle characteristics. On the interpersonal level, psychopaths are grandiose, arrogant, callous, dominant, superficial, and manipulative. Effectively, they are short-tempered, unable to form strong emotional bonds with others, and lack empathy, guilt, and remorse. These interpersonal and affective characteristics are associated with a socially deviant (although not necessarily criminal) lifestyle that includes irresponsible and impulsive behaviour and a tendency to ignore or violate social conventions.

Hare developed an instrument to assess psychopathy. The Psychopathy Checklist – Revised (PCL-R) consists of twenty items that have to be scored 0, 1, or 2 by a trained clinician.⁷ Zero means that a certain feature of psychopathy is absent, 2 means that it is definitely present, while 1 is scored in cases when the feature is somewhat present. This assessment has to be based on a semi-structured interview in combination with a thorough study of the forensic dossier (containing interrogations, investigations, etc.). Collateral information is indispensable in order not to be conned by a psychopath. This assessment procedure results in a score between 0 and 40. The most rigorous and most frequently used cut-off point for psychopathy is a score equal to or greater than 30, although a cut-off point of 25 has been advocated for Europe.⁸ The PCL-R is at present considered the gold standard for the assessment of psychopathy.⁹ During the last decade, the concept has gained tremendous importance in forensic psychology, and has been described as ‘what may be the most important forensic concept of the early twenty-first century’.¹⁰

The forensic clinic meets classic psychoanalytic theory

It is by no means coincidental that the perverse subject is rarely found in the normal consultation room, contributing to the difficulty of the theoretical formulation of perversion. The most important descriptions of perversion come from compulsory treatment, that is to say, the forensic clinic. The same goes for psychopathy. The first documented encounter between a psychoanalyst and a psychopath was in the context of the forensic clinic.¹¹ This introduces an important bias: here we are always dealing with ‘perpetrators’. This must be taken into account, because it clearly concerns a selective group. Research concerning the so-called sub-criminal or ‘successful’ psychopath is as scarce as research about exhibitionists or sadomasochists.¹²

Let’s start with perversion. What do these forensic descriptions teach us about perversion, particularly with the Freudian criterion ‘deviations with respect to the goal’?¹³ Three characteristics emerge:

• the enactment in reality of a rigid pre-genital scenario
  
• that compulsively imposes itself on the pervert subject, and
  
• establishes a relationship of power.

The first characteristic is fairly classical: it is not enough just to have perverse fantasies; they must also be carried out in a ‘hands on’ manner (with the exception of voyeurism and exhibitionism). Nevertheless, this requires further clarification. Ever since the sexual revolution, neurotic subjects have also performed their fantasies, with the result that this criterion becomes considerably more blurry. Moreover, the perverse character must not be sought in the specific content of the sexual scenario – any paraphiliac scenario can be enacted in a normal-neurotic context. The specifically perverse aspect lies in its rigidity, combined with its unfree character. Any deviation causes anxiety and tension. From a psychoanalytic perspective, what we are dealing with here is repetition compulsion rather than repetition as such. Indeed, the presence of repetition in neurotic sexuality always introduces something new into the proceeding dialectic of desire.¹⁴ Repetition compulsion, in contrast, as Freud discovered in his study of the traumatic neuroses, is indeed compulsive and always fails in its repeated attempt to symbolize the traumatic Real. This indicates a link between perversion and a traumatic anamnesis.

The second characteristic stands in stark contrast to the neurotic ideal: the perverse subject is not the liberated erotic connoisseur of the neurotic’s wet dream, quite the opposite. Empirical research into the basic unconscious convictions and cognitive schemes of paedophiles found five convictions, including the sense that the tension cannot be controlled, and this occurring within the larger context of an uncontrollable world.¹⁵ The pervert is fundamentally unfree, compulsively driven to repeat the same thing. It is, moreover, frequently experienced as bizarre; its completion will bring relief but sometimes also shame, disgust, guilt, and depression.

The implication is that the perverse subject is pre-eminently divided. Note that even perverts don’t know what drives them; here the subject division is total. In the forensic context, this causes difficulties because the forensic clinician wants to know what is driving the behaviour, and expects to get confessions. The ‘perpetrator’ cannot give them, however, for the simple reason that he barely knows his own motives. This has the clinical consequence that in day-to-day life the perverse subject often presents a banal normality. In neurotics, the division is less extreme and more ‘dynamic’, thus presenting combinations of normal and abnormal behaviour.

The third characteristic is the most interesting, for a number of reasons. Clinical descriptions show how the perverse subject always directs its scenario towards the other in an explicit relationship of power, that is: the power of the pervert. The exhibitionist, for example, succeeds only if the other is shocked, the masochist will explicitly instruct the other what to do, etc. The above-mentioned empirical research reveals the paedophile’s second basic unconscious conviction: the idea that the world is divided into superior and inferior creatures, the latter being forced to submit themselves to the former.¹⁶ Immediately following from this is the conviction of the need to control the other and the world in general.

This last point shows how the power relationship is not restricted to perverse acts – the pervert is also frequently the priest of a challenging new ‘ethic of pleasure’ that needs an audience that has to be controlled as well. Here, power is not necessarily synonymous with brute violence; it has to do with the relational aspect, the need to have the situation under control. It is important to stress this, because it means that not every pervert inevitably comes into contact with the police.

A different picture emerges from the forensic study of the criminal psychopath. Psychopathy is associated with an earlier onset of delinquent behaviour, faster recidivism, more excessive use of violence, and more violence in institutions.¹⁷ The prototypical psychopath, as described by Cleckley, is an incorrigible thief and swindler who does not refrain from using threat or violence. We do not adhere to the image, propagated by popular media (and some researchers), of the psychopath as a cruel or sadistic criminal, preeminently a serial killer. Although the psychopath has little consideration for the rights and emotional life of other people, it is not common for him to derive sexual excitement from dominating and tantalizing his victims. The psychopath’s criminal attitude seems mainly directed towards material gain.

However, the psychopath’s criminal tendencies cannot be reduced to a purely instrumental orientation. Cleckley noted that many antisocial acts of the psychopath are inadequately motivated, in the sense that crimes are committed even when the material gain is not needed or ridiculously small. Moreover, psychopaths commit crimes at moments or in situations in which the chance of being caught is all too evident. As Greenacre noted, ‘[s]kill and persuasiveness are combined with utter foolishness and stupidity’.¹⁸

This does not mean that the psychopath commits his crimes in a compulsive way. The compulsiveness that can be noted in the neurotic (e.g., kleptomania, pyromania) and in the pervert’s sexual praxis, is absent in the psychopath. The psychopath misses the rigidity and stereotypy of such compulsions; he is a versatile criminal who commits a broad range of different crimes.¹⁹ Take for instance psychopaths’ sexual offences: instead of being fixated on one type of victim, they are able to abuse anyone they can, minors as well as adults. Their choice of victimizing minors is often inspired by the simple reason that they are more easily controllable. Another motive can be their thrill-seeking: abusing a child out of curiosity. Or otherwise, a minor is just the first person they can get their hands on, for instance their own children. All possible motives for psychopaths seem to have in common that they are not guided by some fundamental fantasy or fixation on a particular libidinal object. In contrast to the pervert, the psychopath who commits sexual offences is never a specialized offender.

This lack of fundamental fantasy can also be found in the sexual life of psychopaths, typified by Cleckley as ‘impersonal, trivial, and poorly integrated’.²⁰ The psychopath seems to regard sex very casually, without any desire to explore or to ravish the partner in a shared experience. Sexual activity with a prostitute or casual pick-up is experienced at the same level as sexual activity with their partner, because what they feel is not about to bring out loyalty or love. In Robert Hare’s Psychopathy Checklist, the psychopath’s sexuality is characterized as promiscuous sexual behaviour, referring to frequent impersonal, casual, or trivial sexual activities. Homosexuality and heterosexuality can co-occur, mainly motivated by thrill-seeking. ‘Evidence of consistent, well-formulated deviation was extremely rare in a large group of male psychopaths personally observed in a closed psychiatric institution.’²¹

The pervert and the Law: disavowal

It’s now an open secret that yesterday’s victims of sexual abuse run the risk of becoming today’s perpetrators. However, the link between the victim and the abuser is considerably more complex than a simple black-and-white picture. The connection between a PTSD based on sexual abuse and the perverse structure does not mean that every victim of sexual abuse becomes a perpetrator, let alone perverse. Within Lacanian theory, a subject’s specific structure will depend on the specific relational structure between it and the Other.²² The combination of a chronic traumatic anamnesis and a neurotic structure is also very well possible, and results in Borderline.

Hence the question is: what sort of original relation between the subject and the Other is necessary for perversion to occur, and where does trauma fit into this process? The forensic descriptions all point towards an abusive Other, traditionally anticipated to be the father or his replacement – fitting well with our phallic-patriarchal expectations. The idea that a mother might abuse her child is incompatible with our conventional myths of motherly love. At least three women were necessary to explode this myth.²³ Empirical research has meanwhile shown that sexual delinquents are significantly less securely attached than other delinquents and, moreover, that this insecurity has to do in particular with attachment to the mother rather than the father.²⁴

Let us first return to normal development. The infant’s inevitable starting point is the passive position, that is to say, it is reduced to being the passive object of the mother’s desire and acquires the basis of its own identity through a mirroring alienation coming from the (m)other. Once this basic identity is sufficiently stable, the next step will see the child attempting to take the active position. In-between is a transitional phase where the child still clings to the secure relationship through the use of a ‘transitional object’ (classically the pacifier). In this way, the anxiety about losing the mother can be managed. In a normal, Oedipal situation, the father’s function is to create a situation where the child’s further development can take place, if only by the fact that the mother’s desire is channelled towards him.

In the psychogenesis of perversion this doesn’t happen. The mother reduces the child to her passive object, to the thing that makes her whole. Because of this mirroring, the child remains under her control, a part of herself.²⁵ The child thus gains no representational entry into its own drive, let alone to any subsequent elaborations of its own desire. In structural terms, it is reduced to the phallicized object a, through which the mother fills in her own lack, the process of separation never taking place.²⁶ As a third figure, the father is reduced to a powerless observer defined as insignificant by the mother. This banalizing of the Other of authority will return later on when the pervert takes the Law into its own hands as regards jouissance.²⁷

In this manner, the child finds itself in a paradoxical position: on the one hand, it is the imaginary phallus of the mother – a win for the child. On the other hand, the price the child pays for this is high: there is no separation; any further development into its own identity will be blocked. In response, the child will perform a characteristic reversal in the attempt to safeguard its gain. The child will try to exchange its passive position for the active, taking the reins in its own hands whilst at the same time maintaining the privileged position. In clinical terms, this is most evident in masochism. The masochist presents him or herself as an object of enjoyment for the other, albeit in such a way that s/he has created the whole scenario and directs it – this is the instrumental aspect that clearly shows the passive-active reversal, on condition that ‘active’ is interpreted as ‘leading’. The pervert may appear passive, but is not.

In Lacanian theory, subjectivity is considered as an enduring structure between the subject and the Other, focusing on drive and desire. This explains why every structure entails mechanisms of defence as well. The perverse subject formation has its own distinctive mechanism. Defence is always directed towards an underlying anxiety, beginning with the subject’s own drive tension and subsequently elaborated through exchanges with the first and second Others and their desire. With this, we have reinterpreted Freud’s castration anxiety in terms of an anxiety either about being unable to satisfy the Other’s phallic desire, or about being too able to satisfy it.²⁸ In perversion, we are dealing with a particular manifestation of the second situation: the subject is defined as the perfect answer to the phallic desire of the first Other. In Freudian terms, this implies the lack of castration, that is to say, the mother’s castration (Freud), the Other’s castration (Lacan). At the same time, the phallic lack beyond the mother–child dyad is indeed recognized, particularly in the form of the powerless and insignificant second Other.

This equivocalness is grounded in the typically perverse defence mechanism: disavowal.²⁹ Through disavowal, the pervert adopts a double stance. He disavows the phallic lack (for himself and for the mother), while at the same time recognizing its existence (for the rest of the world in general and for the father in particular). The result is a clear-cut split: the pervert lives in a divided world where lack and the regulating law are both recognized and disavowed at the same time.

We found an example of this split in the statements of a pervert priest who was convicted for sexually molesting dozens of minors. During the first interrogation immediately after his arrest, he admitted the following:

At the start of the second interrogation, he asked for a psychiatrist, and he admitted that he might have ‘repressed’ certain things:

Despite this defence mechanism the underlying anxiety persists, since in this particular situation it involves anxiety about being reduced to the passive object of the Other. Hence the pervert’s typical reversal of positions: the perverse subject compels others to assume the passive position of the object, while taking the active position for himself. In this way, the underlying anxiety can be mastered. In practice, this means that not only will the pervert turn himself into the instrument of the Other’s enjoyment; he will also submit this other to his own system of rules à propos enjoyment.