The minotaur defense: the myth of the pathological intoxication defense.

Author:Feulner, Tim

    Few concepts in the criminal law sound as ominous or mysterious as "pathological intoxication." (1) Pathological intoxication describes an aggressive and often violent state triggered in some individuals by only a small amount of alcohol. (2) Pathological intoxication raises difficult questions for criminal law because it has aspects of mental illness and intoxication. Since the early twentieth century, courts have struggled to determine how to treat a "pathological intoxication defense." (3) The uniqueness of the concept and the difficulty in fitting it within the existing criminal law framework led the American Legal Institute to create a special pathological intoxication defense in the Model Penal Code. (4) Its inclusion in the Model Penal Code gave the defense credibility and changed the way that courts perceived evidence of pathological intoxication. (5) Today, the issue of pathological intoxication continues to be raised regularly as a defense to criminal offenses. (6)

    Meanwhile, members of the psychiatric (7) community have heavily criticized the concept of pathological intoxication. (8) Critics argue that it was developed during a

    time when psychiatry was less advanced (9) and that the term is used as a catch-all for a number of reactions to alcohol that are attributable to different diseases. (10) The growing criticism and the lack of concrete evidence of pathological intoxication led the editors of the fourth edition of the Diagnostic and Statistical Manual Mental Disorders (DSM-IV) to recommend that the diagnosis of pathological intoxication be dropped entirely from the DSM. (11)

    These developments in the psychiatric world have had little impact in the criminal law's treatment of pathological intoxication. Pathological intoxication is still treated as a legitimate defense to a crime despite the fact that such evidence should be barred under longstanding principles of criminal law. (12) Additionally, courts allow expert psychiatric evidence of pathological intoxication despite the psychiatric community's skepticism and the unreliability of the diagnosis. (13)

    This Note argues that the current legal conception of "pathological intoxication" should be abandoned because the notion of excusing defendants for being pathologically intoxicated is inconsistent with basic principles of criminal law. Additionally, expert testimony about pathological intoxication should be barred because it is unreliable even under the more liberal standards articulated in Daubert v. Merrell Dow Pharmaceuticals, Inc. (14) Part II will discuss the medical evidence of pathological intoxication and the debate over whether pathological intoxication describes a distinct syndrome (15) or a range of symptoms that are more properly classified as part(s) of other disorders. Part III will trace the historical development of the legal doctrine of pathological intoxication from the early twentieth century to the addition of a pathological intoxication defense in the Model Penal Code. Then, it will discuss the impact that the Model Penal Code has had on the way that courts view pathological intoxication and two recent attempts to use evidence of pathological intoxication as part of a defense.

    Part IV will discuss the way psychiatry interacts with criminal law. Specifically, it will discuss how expert psychiatric testimony aids fact-finders in applying legal principles to factual circumstances and how psychiatry helps policymakers develop and refine legal principles. Part V will explain the various ways courts have treated evidence of pathological intoxication. Finally, Part VI will argue that pathological intoxication should not provide an excuse for a crime because exculpation of an individual on the basis of pathological intoxication is foreclosed by basic principles of criminal law, and treating an individual who is pathologically intoxicated differently than someone who is voluntarily intoxicated is not warranted. Additionally, the standards for admitting expert witness testimony should bar evidence of pathological intoxication because there is no reliable way to diagnosis individuals with pathological intoxication. Therefore, criminal law should abandon the current approach to pathological intoxication and no longer excuse an individual's conduct on the basis of pathological intoxication.


    Although pathological intoxication has been a medical diagnosis since the nineteenth century, psychiatrists who have studied pathological intoxication have come up with several inconsistent descriptions of the disorder's symptoms. Despite these variances, psychiatrists who consider pathological intoxication to be a valid medical disorder have identified a few common characteristics. Other psychiatrists have questioned whether pathological intoxication really exists and have noted the absence of verifiable cases of pathological intoxication. This controversy eventually led to the editors of the DSM to recommend that pathological intoxication be deleted from the DSM.

    The symptoms of "pathological intoxication" were first described in 1869 by German psychiatrist Richard Krafft-Ebing. (16) Krafft-Ebing described pathological intoxication as involving episodes of acute delirium combined with hallucinations and delusions of a depressive and persecutory nature caused by the ingestion of alcohol. (17) He identified a number of criteria found in cases of pathological intoxication. The onset of pathological intoxication usually occurred in the earlier stages of intoxication rather than the height of intoxication. (18) Pathological intoxication is different from normal acute intoxication because the individual's perception of reality becomes "distorted by the presence of more or less well-organized delirium, as manifested by illusions and hallucinations, complete suspension of self-awareness, manic outburst accentuated by instinctive drives rather than conscious or purposeful motivations, and terminal fits of rage and irresistible desire for destruction." (19) The individual's "[m]ovements are not coordinated" but "become strong and energetic." (20) As a result, the "muscles are capable of extraordinary performances." (21) He described pathological intoxication as including "congestion of the brain, pulsating carotids, rapid pulse, flushed complexion, and congested and shining eyes." (22) Krafft-Ebing also noted that the quantity of alcohol seemed to have no relation to the effect. (23) Finally, he noted there is usually amnesia for the entire period. (24)

    Since 1869, many psychiatrists have studied pathological intoxication with varying degrees of success in determining the contours of the disorder. (25) Over the years, a variety of formulations of pathological intoxication were proposed with different and sometimes conflicting criteria. (26) Karl Heilbronner found that people who were pathologically intoxicated suffered from "anxiety, loss of orientation, and misrepresentation of the environment." (27) Such people suffered from visual and auditory hallucinations that were often accompanied by strong motor releases. (28) Heilbronner believed that some people might become intoxicated, suffer suddenly from an episode of pathological intoxication, and then revert back to normal intoxication. (29) An episode usually terminated with a deep sleep followed by amnesia. (30)

    Another formulation from Sidney Cohen explicitly links pathological intoxication to intolerance to alcohol. (31) Cohen identified six criteria required to make a diagnosis of pathological intoxication. First, the individual had never drunk alcohol or only previously had normal reactions to alcohol. (32) The individual has suffered some injury to the brain that has resulted in damage to the brain. (33) As a result of this injury, the individual loses his tolerance to alcohol and "responds unthinkingly, impulsively, and belligerently to no or minor provocation after consuming alcohol." (34) This reaction is usually but not always capable of being reproduced in a laboratory setting. (35) Following the reaction, the individual experiences a period of exhaustion followed by a period of sleep. (36) When he wakes up, he cannot remember the episode. (37) Finally, the behavior is atypical of the individual's conduct when he is not drinking. (38)

    As these two descriptions illustrate, there is significant variance in the descriptions of the disorder. One of the most significant disputes over pathological intoxication is the amount of alcohol necessary to trigger a reaction. (39) Some psychiatrists did not place significant weight on the amount of alcohol necessary to trigger reactions. (40) Others, including the DSM and psychiatric textbooks, emphasized the fact that the reaction is triggered by only a small amount of alcohol. (41) There is also debate about the necessity of amnesia and sleep for a diagnosis of pathological intoxication. (42) Finally, a few psychiatrists described aspects of pathological intoxication that have never been confirmed and are not found elsewhere in the descriptions of pathological intoxication. (43)

    Despite the varying descriptions, psychiatrists who accept the concept of pathological intoxication have identified a number of similar criteria. First, they agree that pathological intoxication differs qualitatively from typical alcohol intoxication and is usually associated with hallucinations and/or delusions. (44) Additionally, the condition is not caused by habitual consumption of alcohol. (45) When an individual suffers from an episode of pathological intoxication, the individual usually enters into a state of pathological intoxication shortly after consuming alcohol. (46) While in a state of pathological intoxication, individuals typically do not have the impaired motor skills or the slurring of speech that is usually associated with acute alcohol intoxication. (47) At the end of an episode of pathological intoxication,...

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