Serial Killing: A Study of Legal and Social Distinctions Impacting Investigation, Prosecution, and Punishment

Introduction

Serial killing is defined as killing of three or more victims by the same person, with a pattern of characteristics that remain the same for all murders (Flowers, 2012). Serial killers are also described as psychopaths or persons without empathy, scruple or remorse (Kiehl & Hoffman, 2011). Over the years, psychologists and criminologists have tried to explain how serial killing may be different from other types of homicide, and have sought criminal justice responses to serial killing that may be different from how law responds to other homicides. This essay discusses the ways in which serial killing is different from other types of homicide in both legal and social contexts and critically discusses how these differences impact or should impact the investigation, prosecution and punishment of serial killers.

Within psychology, serial killing has been explained on the basis of biological research which explains criminal behaviour of serial killers with respect to their personalities, crimes, and histories (Brooke, Tozer, & Narin, 2010). It is stated that violent crimes in some individuals can be linked to antisocial personality disorders and psychopathy (LaBrode, 2007). In particular, research has linked antisocial personality disorders with serial killing, although it is considered that while antisocial personality disorder is not always a predictor of psychopathy, it is found that almost all psychopaths have antisocial personality disorder (LaBrode, 2007). Even with individuals with psychopathy, all psychopathic individuals may not be compelled to serial killing; however, psychopathic individuals are more likely to commit violent reoffending crimes as compared to individuals without psychopathic disorders (LaBrode, 2007). Serial killers like Gary Ridgeway, Ted Bundy, Ed Gein, and Jeffrey Dahmer, to name a few are identified psychopaths and have similarities in their personalities (LaBrode, 2007).

As psychopathy studies suggest a link between the personality and psychological make up and serial killing, there is an increased focus on how criminal justice system should respond to serial killing. Can criminal justice system respond to serial killing in the same way as it does to other kinds of homicide when there is a possibility of diminished responsibility in serial killing? The question is that where there is a possibility that serial killing is the result of certain psychological traits, then can criminal justice system hold serial killers as culpable for the offences in the same way as other murderers. Some famous serial killers have also had similar traits, called as "triad" of symptoms that included a description of being "off" as children, the tendency to set fires and torture animals, and history of bed wetting as children (LaBrode, 2007, p. 155).

Although serial killers may demonstrate such similarities of characteristics, there are also different subtypes and characteristics of serial killers that are identified in psychopathy literature (Miller, 2014). Generally, typology of serial killers is male, heterosexual, and solitary sadistic sexual homicide offender, although serial killers can also be typologised (in a limited sense) as sadist–masochist, homosexual, and professional killers (Miller, 2014). In rarer cases, serial killers can be female and couples (Miller, 2014). Serial killing can also be characterised as power-assertiveness, power-reassurance, anger-retaliation, and anger-exciting (Keppel & Walter, 1999; Bennell, Bloomfield, Emeno, & Musolino, 2013). Criminology literature has also revealed certain motivations for serial killing like sexual gratification, power and control, and expression of anger (Myers, 2006). These typologies of serial killers and serial killings reveal that there are multiple typologies of serial killers and varied motivations that are related to serial killing. This has implications for the criminal justice system because the system cannot take a generalised approach to prosecution and punishment of serial killers. Different typologies of serial killers also reveals that some typologies may be more steeped in psychological and psychopathy issues that are idiosyncratic to the offender (Keppel & Walter, 1999; Bennell, Bloomfield, Emeno, & Musolino, 2013; Myers, 2006). In such circumstances, the criminal justice system response to the serial killers in terms of their prosecution and punishment is pertinent.

As there has been development of understanding of serial killing and its link to psychopathy in psychiatry, this also has had impact on investigation, prosecution and punishment of serial killers. For instance, investigators have taken to use of profiling techniques within the criminal justice system as a way to profile serial killers (LaBrode, 2007). At the same time, the social construction of serial killers, aided partly by the media reports on serial killers and portrayal of serial killers in the popular media also has an impact on the way criminal justice responses and policy may be drafted; this is also significant because popular media can sensationalise serial killers because they are thought to be more newsworthy (Greer, 2007) while also being reductionist and stereotypical (Hodgkinson, et al., 2017). Media portrayal of serial killers has been typically dominated by the narrative that serial killers are male and female serial killers are aberrations (Easteal, Bartels, Nelson, & Holland, 2015). There is some generalisation in portrayals of serial killers in the mass media. Serial killers are often portrayed as blood thirsty individuals as can be seen in the example of portrayal of Stephen Griffiths where he has been portrayed by some news media as idolising Yorkshire Ripper Peter Sutcliffe repeatedly admitting his horrific bloodlust to psychiatrists (Brooke, Tozer, & Narin, 2010). Words like “horrific bloodlust” and “grotesque ambitions” and “evil of Griffiths” have been used while the fact that he has required psychiatric care since the age of 17 is not treated with as much significance in the one article that was referred to for this essay (Brooke, Tozer, & Narin, 2010). What this shows is that there may be a difference between the psychopathy of an individual and the way the individual is popularly represented in the media reports. This opens up three important lines of inquiry that are pertinent to this essay. First, what are the issues that have to be considered in applying the offence of murder to serial killers. Second, to what extent can the defences of diminished responsibility and insanity be applied to serial killings. Third, can serial killers be allowed the insanity defence in certain cases.

The important issues that need to be considered with relevance to the trial of a serial killer involve the M’Naghten Rule and the element of Mens rea, which is essential to the establishment of culpability of homicide. Law defines murder as the unlawful killing of another human being while of sound mind, requiring the establishment of actus reus and mens rea (Morris & Blom-Cooper, 2011). It is the latter element that is problematic for serial killing cases. The presence of mens rea element can distinguish murder from manslaughter (R v West (1848) 2 Cox CC 500, 1848). If the defendant cannot be shown to have the intention to kill, then liability for murder is not made out (Attorney General Reference (No 3 of 1994) [1997] 3 WLR 421., 1997). Mens rea is related to the fault element which related to intention to kill or cause grievous bodily harm (Ashworth & Horder, 2013). The question with reference to serial killing is whether their acts can fit into the well-defined contours of criminal law that relate to actions that are committed while of ‘sound mind’.

With respect to the possibility of diminished responsibility, this is also a relevant aspect to serial killer prosecution because of the possibility of the defendant being subject to certain flaws in their mental or psychological make up that can compromise their ability to think or act like ordinary people (LaBrode, 2007; Bennell, Bloomfield, Emeno, & Musolino, 2013). Diminished responsibility is a defence under Section 52 of the Coroners and Justice Act 2009 and can be used by a defendant with an abnormal mental function which may account for the loss of control over their acts and lack of rational judgement (R v Byrne [1960] 2 QB 396, 1960). Section 52 provides that a person cannot be convicted of murder if they were suffering from an abnormality of mental functioning which arises from a recognised medical condition, impairs the ability to understand conduct, form rational judgment or exercise self-control. With respect to serial killers, this is a problematic area because while psychology has gradually come to recognise the possible mental defects in serial killers that may set them apart from other kinds of killers, similar response to the possible ‘disease of the mind’ in serial killers is not seen in the criminal justice system.

Peter Sutcliffe’s trial is a case in point. Although, he was diagnosed with paranoid schizophrenia, the trial judge rejected the diminished responsibility plea and the expert testimonies of the. The case was finally decided with the jury by whom Sutcliffe was convicted (Gunn, 2002). At the time of his trial, Peter Sutcliffe was already burdened by the media given name of ‘The Yorkshire Ripper’ and the jury refused to give significance to the testimonies of the psychiatrists who testified that he probably had little control over his actions (Gunn, 2002). An important point in this case is that even the prosecution had accepted the possibility of Sutcliffe being impacted by the hallucinations caused by Schizophrenia and had accepted diminished responsibility, but the judge insisted that the trial go to the jury (Gunn, 2002). This reveals some problematic aspects of how the case was decided and the fact that the accused having been found guilty was never given access to psychiatric treatment for schizophrenia.

Insanity defence is another relevant aspect of trial of a serial killer because research in psychopathy now suggests that there is a link between the psychological or mental characteristics of an individual and psychopathy (LaBrode, 2007). With relevance to this, the M’Naughten standard is an essential point to be considered. The M’Naughten standard is a principle of common law, which provides that the defendant can be excused from criminal liability for acts that occur as a result of mental disease; in such cases, the defendant is incapable of understanding the nature of their conduct (M’Naghten's Case [1843] All ER Rep 229, 1843). There are two elements to the standard: the defendant should be established to be suffering under a defect of reason, or from disease of the mind that leads to lack of awareness of nature and quality of the act or that the act is wrong. The defence of insanity automatism may also be relevant in cases where the serial killer is subject to a mental condition that makes them unaware of actions that may lead to the criminal act (Hill v Baxter [1958] 1 QB 277, 1958). Automatism allows a defence to the defendant in situations where there is a lack of intention (Regina v. Harrison-Owen, 2 All E.R. 726 (Crim. App. 1951), 1951); evidence of blackouts or sleepwalking (Hill v Baxter [1958] 1 QB 277, 1958); and evidence that the defendant is unable to control their behaviour due to the condition (Attorney General Reference (No 3 of 1994) [1997] 3 WLR 421., 1997). Serial killing presents a problem for criminal justice system in the sense that there is a compbination of relevance of psychiatry and criminal responsibility that the law has not been able to define as yet (Biagi-Chai, 2013). In cases involving accused that may be possibly affected by mental issues, the judge calls for psychiatric evaluation. However, as Peter Sutcliffe’s trial indicates, the reliance on psychiatrists’ evidence may be outweighed by other factors. One such factor is the representation of the crime and criminals in media. Therefore, legal issues may be influenced by social issues. To conclude, serial killers are different from other killers and there may be important issues of their mental state, psychiatric make up and psychopathy that may be relevant to their culpability. Although the law recognises the defence of insanity and diminished responsibility, this depends on the jury to define with respect to specific accused individuals. Instead, in such case, as the increasing evidence from psychiatry shows, there should be greater reliance placed on the expert testimony. This did not happen in the Sutcliffe case, which begs the question as to whether there needs to be a change in the way criminal justice system approaches serial killing.

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