Contenu du sommaire : Expertise psychiatrique et sexualité (1850-1930)

In his autobiography, writer and doctor Arthur Schnitzler (1862-1931) tells us that mental illnesses draw him especially by whatever may be their “poetic or at least literary” qualities.  Referring to a tragedy reported in the news (a mentally ill person kills his brother – an authentic case of murderous paranoia), Schnitzler undertakes to show us, through fiction, that literary expertise is superior to medical expertise for feeling and translating the complexity of singular situations. He builds his demonstration drawing as much on his knowledge of the neurological sciences and psychiatry as he does the tradition of romantic medicine and tales of the fantastic.

Surprisingly, Lisa Appignanesi makes little reference to female criminals in Mad, Bad and Sad, Women and the Mind Doctors (2008). That omission is interrogated here.  Is it an artifact of Appignanesi's discourse, which entails a “feminist” vision of the history of psychiatry – a vision that by definition leaves no place for “delinquent” women? Or is it feminine criminality itself that remains in the margins of traditional legal and criminological analysis – since in those terms, the “criminal” woman cannot but be insane?  

Ecclesiastical courts, like civil courts, call on psychiatric expertise in criminal trials, especially where spouses are involved.  Judges seek expert advice in determining whether one of the parties, presumably mentally deficient (furiosus), was competent to consent to, and take on, the obligations of marriage.  We review cases in which ecclesiastical courts resorted to psychiatric and even gynecological expertise.  Next, we consider both doctrine and jurisprudence concerning the question of madness and sexual psychopathology (as was deemed homosexuality) in the nullification procedure, mainly during the first half of the twentieth century.

In 1884, Adolf Kocher, a student of Lacassagne, published a medical thesis entitled De la criminalité chez les Arabes au point de vue de la pratique médico-judiciaire en Algérie (On criminality among the Arabs from the perspective of medico-judicial practice in Algeria). An authentic medico-legal treatise intended for doctors posted in Algeria, this work constitutes one of the first systematic studies, in French, on criminality in a colonial context. A brief review of the context in which medical knowledge encounters the colonial question is followed by discussion of the context of the reception of the thesis.  A critical reading unfolds in two parts: first discussing the manner by which this study of criminality envisions – not without paradox – the question of « the Arab's » criminal repsonsibility. We then show how the Arab gradually becomes the exemplar of the criminal type, based mainly on the medico-legal category of offenses against public decency. How far may one go in supporting the study of indigenous sexuality as an edifying contrast to western standards without definitively indexing it to an exclusive set of pathological varieties?   

Medico-legal expertise was not a creation of the 19th century but application of the Napoleonic Criminal Code of 1810 profoundly changed the role of experts in judicial proceedings. Faced with certain strange behaviors, judges were increasingly led to solicit psychiatric experts so as to determine the level of responsibility attributable to those accused of crimes or misdemeanors. In the specific domain of sexual offenses, it fell to psychiatrists to determine the border between perversity and perversion, and the distinction between sanction and care.  In spite of growing concern with the scientific character of medical studies devoted to sexual perversions, psychiatric experts of the 19th century did not always succeed in separating themselves from the dominant political and moral values of their times.

The focus of this article is the medical discourse concerning what so-called “sexual anomalies.” Concerned to dissociate illness from vice around 1900, physicians adopted an objectivist position. Approaching homosexuality as a pure object of study, they felt compelled to “give the floor” to “the patient” – as if the “voice” of the patient might supplement the signification of the medical presentation.  In the interstices of medical discourse, it is homosexual subjectivity that emerges.

A court-ordered appraisal carried out by Dr Brierre de Boismont in 1843 led to the recognition that pedophilia cannot be reduced to sexual aggression – an act that often masks another clinical structure. This statement makes it possible to point therapy in other directions.

This article is about one of the first expert testimonies presented to the tribunals of the imperial Court, conducted by Krafft-Ebing when he had just been named professor of psychiatry at Vienna. He was called in on a case involving a young Hungarian countess – in his view, suffering from gynandrism – charged with illegitimate marriage to a young woman and knowingly misrepresenting herself to her “father-in-law” in the process.  Of particular interest is the way Krafft-Ebing oriented his testimony, aligning it with the theory he had previously elaborated regarding sexual psychopathies (notably degrees of homosexuality). Of interest, too, is his role in the acquittal of the countess, who spent the rest of her life as a man (in body and dress), identifying himself as Monsieur le Comte…

Vacher is considered one of the first French serial killers. The inquest that led to his arrest is known even now as a landmark in the history of criminal prosecution. Until now, the inquest has overshadowed somewhat the question of Vacher's expertise. The article is an attempt to show how Vacher's expertise contributes to the special nature of a case that became a turning point in history of criminal responsibility in France.

Analysis of two short texts by Freud, written at the request of a lawyer – “Psycho-Analysis and the Establishment of the Facts in Legal Proceedings” (1906) and “Faculty's report in Halsmann's trial” (1931) – is instructive with respect to the place of experts (psychiatrist or even psychoanalyst) in relation to shifts in the concept of Justice: once culpability has been established, diagnosis is no longer used to assess the degree of responsibility, but to support a verdict of “not proven.”  

In New Caledonia, Kanak can, under the terms of article 75 of the Constitution, preserve their usual personal status. Although French, they do not belong to the personal status of Civil Law. This usual statute has consequences as much on the standard applicable to their situation that with the composition of the jurisdiction. If this statutory separation leads to differenciate the two types of sources during their interpretation and application, it appears that the Cour de cassation and the Organic Law of 1999 determine the field of application of this custom following ratione personæ and materiæ criteria under the prism of civil law. However, it is not certain that this step, devoted, is relevant whereas the equality between the common right and the custom is conditioned by that, constitutional, of the statutes. It will then be advisable to pose the premises of a criticism of this positivist approach of the custom and usual civil statute, with the ell of questions raised by the meeting held on the two statutes, in particular the qualification of the concepts which delimit the field of it.

This work is based on the customary law, mainly the qanuns or customaries, which constitute a part of the special and specific custom of each village, to study the social relationships in the traditional kabyle society. Breaking with the conceptions, which reduce its relating activity to the only penal part, the purpose of this work is to show that the kabyle village sets himself up as a full political entity, imposing its code and its right on its territory, reflecting thus the spacial dimension of an authority. This dimension is embodied by an active and representative authority, in this case the assembly of the adult men of the village or the tajmaɛt.