Gender, Mental Disorder and Law at the Borderline: Complex Entanglements of Victimization and Risk

Abstract

Legal, psychological, criminological, narrative and ideological representations of borderline personality disorder (BPD) are examined through 20 years of germane Canadian case law situated within the context of multidisciplinary scholarly and clinical literature on the themes of gender, mental disorder and culpability. These cases document the claim that the BPD diagnosis pathologizes women whose conduct represents adaptive responses to trauma, conflicts of selfhood and safety. A troubling sub-theme is identified in a cluster of cases where expert medical professionals are found culpable of predatory exploitation and re-victimization of patients seeking their therapeutic assistance. A third theme is the overrepresentation of BPD diagnoses in female forensic populations and the fusion of risk/need in correctional policies. It is argued that the legal deference shown to medical expertise validates BPD as a forensic category. Ultimately, the imposition of punitive corrective measures criminalizes, punishes and marginalizes this population in ways unlikely to rehabilitate and restore them to the normative order.

Key words:

• borderline personality disorder
• BPD
• gender
• law
• mental illness
• trauma
• women

Acknowledgements

An earlier version of this paper, titled ‘Borderline Personality Disorder and Women in Conflict With the Law: Some Preliminary Hypotheses’ was presented at the Canadian Law and Society Association Mid-Winter Meeting, University of Toronto, January 2013.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1. Alberta (Director of Child Welfare) v CA, 2000 ABPC 75.

2. MM v RF, 1997 CANLII 14477 (BCCA).

3. JVLM v PH, 1997 CANLII 9574 (BCSC).

4. SAD BLM & LLM v EP & MP Estates and BC, 2003 CANLII 1535 (BCSC).

5. JRIG v Tyhurst, 2001 BCSC 369 (BCSC); JG v Tyhurst, 2003 CANLII 224 (BCCA) (appeal denied).

6. R v Tyhurst, 1993 CANLII 814 (BCSC); R v James Stewart Tyhurst, 1996 CANLII 8330 (BCCA) (acquittal affirmed).

7. The plaintiff's relationship with Dr Tyhurst began in 1979 and the master/slave relationship was found to be in place no later than 1984. The defendant was investigated by the College of Physicians and Surgeons (BC) Committee on Ethics and Discipline in 1981 with an outcome that his ‘indenture’ and ‘bondage’ therapy with another patient, EW, was ‘unacceptable’ and that in future he seek collegial consultation before embarking on such treatment. In 1983, he was contacted by another psychiatrist, who confronted him with respect to similar allegations made by another complainant, SL. The colleague did not notify the college. An RCMP investigation had begun in 1989 and charges for indecent and sexual assault were laid, followed by two criminal trials in 1991 and 1993. The defendant was originally convicted on complaints laid by four complainants but a new trial was ordered on appeal. The second criminal trial, with only two complainants, resulted in an acquittal. The Crown's 1996 appeal was unsuccessful. In the civil case, an interlocutory motion on the admissibility of similar fact evidence was heard in 2000, reasons for the trial court decision released in 2001 and the appeal to the Court of Appeal on the civil suit was decided in 2003, 14 years after criminal charges were first laid.

8. Dir. of Child and Family Services (BC) v NB, 1998 CANLII 13 (BCPC).

9. Security Supervisor John Tarala was fired from his position, but later acquitted on criminal charges pertaining to one assault (Perkel, 2013; Sask. guard cleared in Ashley Smith assault case, 2013).