Originally published in the Family Law Section’s, The Commentator (Fall, 2016, page 23).
Stephens: Antisocial personality disorder (ASPD) is a personality disorder defined in the Diagnostic and Statistical Manual of Mental Disorders (DSM) as a pervasive pattern of disregard for, or violation of, the rights of others. An impoverished moral sense or conscience is often apparent, as well as a history of crime, legal problems, and/or impulsive and aggressive behavior.
Approximately 3% of males and 1% of females in the United States suffer from this disorder. As with any psychological disorder, the stress of a divorce often magnifies harmful consequences that accompany the behaviors associated with this disorder.
For every 17 divorce cases an attorney handles, 1 of the parties will be affected by this disorder. When an attorney comes across 1 of the 17, it is important for that attorney to have an understanding of the psychopathy in order to navigate the many obstacles this scenario presents.
O’Hara: Managing our conflicts with others over wishes, ideas, work, or property is difficult. Helping others in high conflict divorce, as part of our professional endeavors, can be rewarding but very complex. This can become exacerbated when one or both of those in conflict have severe personality problems, and research indicates this is the case in 60-80% of high conflict divorces. What do we do about those who — because they are preoccupied with self-determination and completely indifferent to the feelings of others – habitually resort to violence, coercion, exploitation, deceit and manipulation to express their power for its own sake?
Over the last several decades, the behavioral sciences have advanced our understanding of these very troubled people. More and more, we are able to accurately conceptualize, assess and diagnose individuals with ASPD, even going so far as to reliably predict what their conduct will be.
Unfortunately, because of changes in terminology, emphasis on different traits by different researchers, and decisions about collecting epidemiological data, we still do not have a unified name for people with this disorder. In fact, the terms antisocial personality disorder, psychopathic personality (or “psychopath”), and sociopathic personality (or “sociopath”) are all still used interchangeably throughout the literature.
In the late 1880s, the term psychopathy – literally meaning “suffering souls” — was coined to describe “moral insanity” or possessing a “morally deprived” orientation. The term sociopathy gained recognition in the mid-20th century to denote both the sociocultural determinants of this tendency and the damage done to society by these individuals.
Today, ASPD refers to the most dangerous personality disorder, and it comprises a cluster of interpersonal, emotional, lifestyle, and antisocial traits and behaviors. This personality type can be divided into two subtypes: a relatively nonviolent manipulative type, or the more explosive, actively predatory and violent offender type. What differentiates the psychopathic personality from all other severe personality disorders is the absolute inability to emotionally invest in others.
I prefer the traditional term “psychopathic” personality disorder to the contemporary term “antisocial” personality disorder, because many with this “antisocial” personality formation are not in constant conflict with the law or even in obvious conflict with social norms. Furthermore, many with the DSM diagnosis of ASPD are not characterological psychopathic.
What’s essential when working with psychopathic individuals, or with those in close contact with them (such as ex-spouses or family members), is to understand the degree of their psychopathy—to discern whether these traits arise only under certain situations, or whether there is an overall severe chronic disturbance.
Stephens: People with this illness may seem charming and can exude charisma. They are likely to become irritable and aggressive. Due to their manipulative tendencies, it is difficult to separate the true things they say about themselves from the false. However, when they lie, they are fearless, because they have no regard for the consequence. Humans often have a reluctance to commit perjury, and if they do, a learned jurist is trained to sense that reluctance. Psychopaths do not have this reluctance, and so it can be problematic for traditional jurists to be able to identify the lying psychopath.
O’Hara: In the field of psychotherapy, the term “countertransference” is used to describe the therapist’s feelings for the patient, which are generally believed to be an important source of information in diagnostic and treatment considerations.
I know this may sound cynical, but if your first impression of a client or opposing litigant during mediation or a deposition is how extremely likeable they are or other unusually positive feelings, then you may want to proceed with caution. This is because the psychopath’s charm and charisma are designed to disarm, manipulate, and deceive. Some psychopaths have developed quite sophisticated lies that have worked well for them, and they have had the time to hone the skill. They rely on the notion that most people assume others can be trusted, and psychopaths use this to their advantage. That is why it is so crucial to obtain multiple sources of external verification to corroborate the psychopath’s claims. It is important to detect this propensity in your client and/or the opposing litigant so that you are better prepared to either protect your client from himself or to impeach the credibility of the opposing party in court.
Stephens: The psychopath/sociopath will quickly try to learn the system. The high-functioning afflicted will often try to manipulate the system to their advantage by filing motions and attempting to direct the strategy of the case or to drain your client’s resources by filing motions that advance their agenda.
The most effective litigation tool to protect your client is an in-depth and detailed deposition of the afflicted. A psychopath/sociopath will lie. Low functioning psychopath / sociopaths will say things to suit their egos at the moment. Higher functioning afflicted may have a more elaborate fabrication that fits with their “theory of the case.” In any event, a detailed temporary relief deposition early in the proceedings will be useful to establish the lack of credibility once the case gets moving.
Your client might be surprised at the extent a psychopath/sociopath is willing to fabricate facts during their testimony. The purpose of the discovery deposition is not to prove they are lying. It is to fully document the afflicted’s current version of facts and lock them in to their testimony. This way, once their version of events changes, or you can contradict their testimony, the afflicted’s lack of credibility can be properly presented to the trier of fact.
The most useful tool a family law attorney has to demonstrate to the Court is the ability to impeach the afflicted individual’s previous sworn testimony.
O’Hara: Most people’s idea of how a psychopath behaves comes solely from Hollywood’s depiction of them in movies. Most people also are not aware of the multiple purposes for which depositions can be used, particularly as it plays into the longer strategy of the case. Perhaps it would be helpful to warn your client that you expect, and are prepared for, the psychopath to lie during his or her deposition, and that one of the main purposes of the deposition is to have the psychopath commit to claims now so that, when the story changes, the deposition can later be used to question his or her credibility.
Stephens: The rules of civil procedure provide a number of other tools to help reveal and deal with antisocial characteristics, such as social investigations, use of a guardian ad litem, and psychological testing.
O’Hara: The use of tools such as psychological testing and social investigations will greatly assist in determining the degree of severity of the person’s psychopathy.
It’s been my experience that determining psychopathy solely by psychological testing and interviewing is challenging because you are at the mercy of the examinee’s self-report in the interviews and test taking. When a social investigation is used in addition to the clinical interviews and psychological testing, the psychologist has multiple sources of information from which to determine psychopathy, including document review, collateral contact interviews, etc. These multiple sources of information better equip the trained psychologist to highlight for the Court particularly disturbing family events from multiple vantage points, as opposed to just the psychopath’s.
Stephens: George Bernard Shaw once said: “I learned long ago, never to wrestle with a pig. You get dirty, and besides, the pig likes it.” Your best ally in this situation is your opposing counsel. Opposing counsel is in the best position to inform the afflicted of the possible consequences of their behavior and decisions. However, if opposing counsel does not recognize the issue, or adopts the personality of the client, engaging in lengthy attempts of resolution is often a tactic used by the afflicted to drain resources that may be necessary to properly present the case.
It is important to realize that some people are so self-destructive they will never reach an agreement. If your client does not have the resources to make a competent presentation in Court if needed, the afflicted will have a significant advantage.
O’Hara: The psychopath does not have a drop of milk of human kindness. In fact, they derive sadistic glee in manipulating and overpowering others. They are preoccupied with manipulating or being manipulated. Typically, the psychopath is convinced they can make anything happen and that everyone else is selfish, manipulative, and dishonorable. This unfortunately places them at a significant advantage with regard to competing interests, particularly because other people are not aware of this approach until it is too late.
A few times over the years I have had family law colleagues refer patients to me to help them through the difficult task of extricating themselves from a psychopathic spouse or family member. Usually in these cases, the patient is bewildered or overwhelmed by the chaos they find themselves in at the hands of their predatory other person. They are compelled to search for an understanding of how things came about. How could someone who professed to love you act so violently, so manipulatively, so deceitfully, and so callously? The reason why patients are appropriately confused is because they are using prosocial norms and moral reasoning to make sense of things. This does not even begin to explain the ordeal they are going through, because the psychopath doesn’t use these same norms and moral reasoning in their actions.
The therapy in these situations needs to focus on assisting the injured person to process and understand his or her feelings and losses, and to begin setting limits and boundaries that protect from further harm. They must understand that, rather than attempting to change the psychopath, the most they can hope for is to prevent the psychopath from inflicting further damage to them, and that the only way to accomplish this is by removing the psychopath from their lives and letting him or her move on to someone else. Ideally, patients will come to understand that the sooner they can have this person removed from their lives, the sooner they can begin to recover and begin creating a more normal life again.
Stephens: Ultimately, it is important to ascertain whether you are litigating against someone with these tendencies. A psychopath is likely to engage in self-destructive behavior under stress.
Typically, the best approach to take is one of damage control (i.e., attempting to mitigate the damage and further loss) and to adapt a “protect and preserve” strategy. Your client may even need professional therapy to help understand and perhaps undo some of the manipulative devices and issues relating to post traumatic stress.
Engaging with a psychopath is not fair because the afflicted is not restricted by “rules of ethics” or a moral compass and is, therefore, able to inflict much more “damage” than would occur in a normal contested case. The end result of this type of circumstance is rarely a fair family law settlement. Our adversary system is based on the fact that human beings have a conscience and, because of that, they should exhibit normal human reactions to stress, guilt and doubt. When those reactions are easily masked and concealed, the assistance of a forensic psychologist may be your only recourse.
Dr. Michael O’Hara obtained his B.A. in English Literature at the University of Florida (Gainesville, FL) and his Psy.D. in Clinical Psychology at Carlos Albizu University (Miami, FL). He was trained in psychodynamic and child-centered play therapy and family systems at a large outpatient child-guidance clinic in Miami in the 1990s. Dr. O’Hara has been in private practice in Jupiter, FL since 2000 in general clinical psychology, with a specialty in forensic psychology in the area of high conflict families in Family and Matrimonial Law since 2003.
Eddie Stephens is a partner at Ward Damon located in West Palm Beach, FL. Mr. Stephens was admitted to the Florida Bar in 1997 and is Board Certified in Family and Marital Law. After starting his career as an attorney for the Palm Beach County Property Appraiser’s Office, Stephens has developed a successful family law practice focused on highly disputed divorces. Through hundreds of hearings and dozens of trials, Stephens has honed his practice by making straightforward arguments that bring opposing sides closer together in order to find a successful resolution.