Le simulateur face à l’expert

Abstract

Since 1810 and the enactment of article 64 of the Penal Code, the lack of discernment due to a mental disease has become a cause of penal immunity. People suffering from a mental or a neuropsychic disorder and having abolished their discernment cannot be sentenced as being criminally responsible for the crime they allegedly committed. Nevertheless, this protection status has had a pernicious effect as some accused are trying to exempt themselves from legal trials by dissimulating their mischiefs under a crazy action. Like McMurphy in One Flew Over the Cuckoo's Nest, they are simulating craziness to preserve themselves from the sentences they could receive. Hence, simulating a mental disorder is prevalent in the legal landscape. To make the difference between the real and the pretending sick cases, the magistrate uses the supposed experts’ knowledge. In order to help him building his sentence, they give him medical and psychological information aiming to identify “the diminished mental capacity” of the accused person. Thus, we are observing a close cooperation between the legal and the mental health practitioners. Nevertheless, this collaboration raises technical and ethical problems. The clinician who intervenes as an expert runs the risk to face the orders of Justice, without avoiding the opposite risk of being manipulated by an individual trying to benefit from his alleged craziness. What is more, the expertise scope is radically different from the therapy one where the individual is expected, according to Freud's formula, to work “side by side” with the therapist. For the latter, it is not a question of finding the “truth”, but of listening how the patient's psychic reality is expressing itself through its slips, its blackouts or its modified memories. Yet, in the case of a simulation, the individual changes the reality, deliberately, to abuse the Law in his favor. However, this behavior consisting in simulating craziness provides the opportunity to question the forensic expertise framework functioning. By playing with this framework, these individuals are indirectly highlighting some of its faults, which otherwise go unnoticed. This article describes the ethical and technical pitfalls the specialists are facing when confronted to simulation cases. To do so, the authors, a legal expert and a psychologist, remind the comments made by Freud at the time he was mandated as an expert to study this field. Then, they are saying more about the difficulties lying on the mental state of the accused can become a problem on a legal scale. Then, they open a discussion on the exact health level of the simulating people. Their intention can lead to the conclusion of their perfect rationality. Nevertheless, resounding scandals are challenging this conception. Even though the individuals are aware of defying the Justice, their behavior may unconsciously hide a mental disorder.