Pathological gambling: forensic issues

Pathological gambling: forensic issues

Aust NZ J Psychiatry Downloaded from informahealthcare.com by University of Sydney on 05/18/14 For personal use only.

Alex Blaszczynski, Derrick Silove

Objective: The aim of this paper is to review the literature describing the hypothesised link between crime and pathological gambling and its relevance to arguments of diminished responsibility. Method: An attempt was made to include all publications in the psychiatry and psychology literature which made reference to pathological gambling and criminal behaviours. Given the limited research in this field, specific unpublished conference papers were also included in the review. Results: Evidence supports the contention that pathological gamblers are at high risk for committing criminal offences in order to maintain their habitual gambling behaviours. An antisocial personality disorder while acting to increase the risk factor is in itself an insufficient explanation for the observed link. As a result of the acceptance of pathological gambling as a psychiatric disorder, the judicial system is being increasingly confronted with an argument of diminished responsibility for gambling-related offences committed by pathological gamblers. Conclusion: A diagnosis of pathological gambling does not diminish legal responsibility but is a factor that should be considered in sentencing. Referral to psychiatric services reduces the risk of recidivism. Australian and New Zealand Journal of Psychiatry 1996; 30:358-369 Gambling is found in almost every race and culture throughout history [ 1-21. In Australia, Europe, the USA and Canada, the contemporary politico-economic climate has shown a significant shift toward the legalisation and widespread expansion of commercial gambling enterprises. Influential in this trend have been the derived economic and political benefits to State governments through politically-neutral increased tax revenue opportunities [ 3 ] .Ten per cent of State government income is obtained from gambling taxes, the second largest single source of such revenue. Tempering this trend is the concern expressed by the community and by mental health professionals

about the negative social and welfare consequences of excessive gambling. It is recognised by such subgroups that a small minority of individuals are psychologically vulnerable to the development of compulsive patterns of gambling which result in serious social disability 141. A number of experts [5-81 note that the concept of pathological gambling as a psychiatric disorder has important forensic implications. In the USA and Germany, pleas of diminished responsibility and/or not guilty by reason of insanity have been successfully entered by defence counsels as arguments against the conviction of pathological gamblers charged with gambling-related criminal offences

[VI. Psychiatry Research and Teaching Unit, School of Psychiatry, University of New South Wales at Liverpool Hospital, Liverpool, New South Wales, Australia Alex Blaszczynski MA, DipPaych. PhD, MAPSs. Associate Professor in Psychiatry Derrick Silove MBBCh, FRANZCP, Profesor of Psychiatry

The purpose of this paper therefore is twofold: (i) to present the empirical data describing the putative link between pathological gambling and the commission of criminal offences; and (ii) to explore the relevance of a diagnosis of pathological gambling to the

A. BLASZCZYNSKI, D. SILOVE

sentencing options open to the judiciary and to the subsequent risk of recidivism.


Definition of pathological gambling ‘Compulsive’, ‘excessive’, ‘neurotic’ and ‘addictive’ [lo-131 have been used to describe excessive and repetitive gambling behaviour. Pathological gambling was first listed in DSM-I11 [14,15] under Disorders of Impulse Control (Not Elsewhere Classified) together with kleptomania, pyromania and intermittently explosive behaviours. DSM-IV [ 161 defines pathological gambling as persistent and recurrent maladaptive patterns of gambling behaviour that disrupt personal. family or vocational pursuits. Diagnostic criteria were deliberately modelled after those for Substance Dependence Disorders [ 171. The central characteristic features of this disparate group of impulse dyscontrol behaviours include: the repeated failure to resist impulses or the drive to carry out certain behaviours which are harmful to the individual or to others: an increasing sense of tension immediately before committing the act; and the experience of pleasure, gratification, or relief on completion of the act. Immediately following the act there may or may not be genuine regret, selfreproach, or guilt. That acts are repeatedly carried out to generate a sense of excitement and not to reduce anxiety distinguishes these from obsessive-compulsive disorders. In fact, more similarities appear to exist between the impulse disorders and the addictions where, in both instances, individuals face an approach-avoidance conflict involving the choice of short term reinforcement at the expense of longer term negative outcome.

The prevalence of pathological gambling Epidemiological studies of pathological gambling conducted in Australia [ 181. Canada [19,20], Spain [21] and the USA [22,23] reveal point-prevalence rates of between 0.44 to 3.50 depending on criterion measure and sampling method. The generally accepted rate for Australia is somewhere between 0.5% and 1.5%. The male/female sex ratio for pathological gambling is 9: 1. While the course of the disorder differs between genders, the typical profile of a gambler seeking treatment is that of a young, married male aged 35 years suffering major depression. Ninety per

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cent commence gambling prior to age 20 years [24,25] and participate socially for an average of 8 years before losing control [7]. Treatment occurs in the context of a financial, marital and/or legal crisis. By this stage, most have gambled excessively over an average period of 9 years.

The pathological gambling process and the risk of criminal behaviours The inherent nature of gambling exposes participants to the risk of committing offences in order to sustain their habitual behaviours. Lesieur [25] describes the incipient process in which gamblers enter a constricting cycle of options leading to a financial predicament in which the commission of a criminal offence becomes almost inevitable. Three major phases in the career of the pathological gambler are described. In the ‘winning phase’, participation increases in response to the reinforcement produced by the excitement of gambling and the expectation of continued wins. Seventy-five per cent of gamblers report significant wins in the first 6 months of participation. The belief that gambling represents a relatively easy source of revenue is established. The excitement of winning is regarded as equivalent to the ‘hit’ or ‘high’ produced by stimulant drugs. Progressively larger amounts are invested as the level of optimism/confidence rises. The lack of family and/or marital responsibility and financial obligations in adolescence allows loss of income without creating significant problems. With marriage. the gambler becomes financially accountable and has less available disposable income with which to gamble. The conflict between meeting living expenses and gambling results in the concealment of gambling from others. In the ‘losing phase’, continued gambling invariably leads to ‘chasing losses’, the attempt to recoup losses through further gambling [25]. Financial, employment or social obligations become compromised with legal sources of finance being exploited as the level of debt escalates. Funds are borrowed from friends, credit card cash advances, loans, and, in desperation, assets are sold off or depleted through pawn-dealers to temporarily alleviate financial pressures. The final ‘desperation phase’ is characterised by intense anxiety, depression and social alienation. Affective disorders are common in the desperation phase with 75% of these gamblers meeting criteria


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PATHOLOGICAL GAMBLING: FORENSIC ISSUES

for major depression [26] and 20% for anxiety [27]. Suicidal ideation is reported in two-thirds of cases with 20% making actual attempts [28]. Depending upon sample source, i.e. Gamblers Anonymous, Veterans Administration hospitals or drug and alcohol treatment facilities, the comorbidity for substance abuse ranges between 4% to 39% [29,30]. However, the direction of causality remains obscure. The sense of despondency produced by overwhelming financial pressures increases the risk that gamblers will commit illegal offences to obtain necessary funds. Often, actions are justified on the basis that funds are ‘borrowed’ with the genuine intent of repayment. Initially such actions are successful and remain undetected but as losses and debts mount, the possibility of repayment becomes unrealistic. A cycle is entered in which further illegal acts are committed to avoid detection of earlier misdemeanours and to maintain gambling. In the desperation phase, the median weekly gambling expenditure is $200 with a median per capita debt of $8000 [7]. Twenty per cent report debts in excess of $40 000. Only 16% of gamblers deny the presence of debt. It is the need to maintain the gambling addiction and not the desire for personal economic gain that acts as the principle motivation for pathological gamblers to engage in criminal behaviour.

Pathological gambling and crime: empirical data Accurate rates of the prevalence and extent of gambling-related criminal behaviours are difficult to obtain. Arrest and conviction rates are inadequate because gambling is not necessarily identified on conviction records as underlying the offence, and not all gambling-related offences are detected or offenders apprehended. Therefore, the true prevalence rate is likely to be underestimated. Blaszczynski and McConaghy [7] reviewed the literature on crime and pathological gambling in a report to the Australian Criminology Research Council (report available on request). Aspects of that review are reproduced in the following section with permission. J. Edgar Hoover (1933), Director of the FBI, noted the relationship between gambling, alcohol and crime: ‘the records are replete with cases where the embezzler ... served his bank and his community and

.. . achieved an enviable reputation as a friend of the community and a bank officer of unimpeachable integrity and honesty, but who, through circumstances bringing unusual pressure to bear upon his moral fibre, has succumbed to temptation and betrayed both the bank and the community’ [31]. The Chicago Crime Commission (1947) claimed that excessive gambling accounted for 30-75% cases of fraud in 20 insurance companies surveyed [32]. Similarly, the United States Fidelity and Guaranty Company of Baltimore identified gambling/drinking as the substantive cause for 26.3% of company losses in a sample of 963 men convicted for embezzlement [32]. The prevalence of offending among Gamblers Anonymous members is varied but high. Politzer and colleagues [33] found 90% of 102 gamblers treated at the Johns Hopkins Compulsive Gambling Centre engaged in illegal acts, each patient committing a mean of 1.3 prosecutable offences with an average of $US I87 1 (1 98 1 base-rate) per offence. The predominant offences described were white collar crimes of embezzlement, cheque and credit card fraud/forgery, larceny, and tax fraudJevasion. Thirty per cent of the sample committed serious offences punishable by prison terms, but only 17% of patients were prosecuted with 67% of these avoiding further action through financial restitution. Of the six patients sentenced, only one received a custodial term in prison. In the United Kingdom, Brown [34] surveyed 77 English and 30 Scottish members of Gamblers Anonymous, the sample representing a response rate of 35%. Of the English sample, 82% had offended with 51% actually being convicted with the number of convictions per offender varying between one and 33 1. Corresponding figures for the Scottish sample were 77% and 40%, respectively, but the number of convictions per offender was not reported. Frank et al. [35] surveyed 162 out of 500 Gamblers Anonymous members from 17 States in the USA. A linear relationship between severity of excessive gambling, suicidal impulses and illegal activity was found with suicidal gamblers more likely to have commenced gambling at an earlier age, gambled heavier amounts, and to have stolen funds. Of the sample, 48% had contemplated and 13% had attempted suicide. Approximately 83% of suicidal gamblers had stolen or knowingly issued cheques with insufficient funds compared to 57% of those denying suicidal ideation.



Forty-seven per cent of Lesieur and Puig’s [36] sample of 241 members of Gamblers Anonymous perpetrated at least one form of insurance related offence such as faking auto accidents or home burglaries, or submitting excessive claims. However, a much lower offence rate of 3.8% was reported by Sommers [37] in a randomly selected group of 83 Gamblers Anonymous members and 61 social club members in Pennsylvania and New Jersey. In Australia, Malkin and Syme [38] made tangential reference to seven of 16 (43%) Gamblers Anonymous members, with none of the 16 social gamblers having committed a gambling-related offence. No details of the nature or frequency of crimes committed were given. In 1986, the Salvation Army conducted a telephone survey inviting residents of the Sydney metropolitan area to phone the centre if gambling was a problem for either themselves, their relatives or friends [ 391. The Salvation Army received 352 calls, 54% from gamblers themselves, 43% from immediate family members, and 3% from business associates. Seventythree per cent of the gamblers reported were male and 27% females. The average level of debt of the 123 callers providing necessary details was $20 860.00 with a total debt for the whole group amounting to $2 565 825.00. Three-quarters of the group had lost all savings, 61% had outstanding debts and 3 1 % had sold real estate and assets to repay gambling debts. Of the total callers, 19% admitted to some form of criminal involvement, 9% to gamblinginduced bankruptcy and 7% to serving a prison sentence for gambling-related crimes. Clinical studies have consistently described high rates of illegal behaviours in samples of pathological gamblers seeking treatment [24,25,28,33,34,40-43]. Depending on whether criteria used include selfreport measures [25.28,34] or objective indices such as actual arrest [24,28] or known criminal record (421, these studies report that between 21% and 85% of pathological gamblers commit offences with between 4% [33] and 13% 1281 serving custodial sentences for their offence. The most systematic study of crime and pathological gambling is that of Blaszczynski and McConaghy [7,43]. These authors administered a semi-structured interview and battery of psychometric measures to 152 pathological gamblers seeking behavioural treatment at a hospital-based program, and 154 Gamblers Anonymous members. The interview obtained

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detailed demographic data and details of the nature, frequency and associated legal consequences of all criminal activities whether gambling-related or not. Embedded in the interview were DSM-I11 diagnostic criteria for antisocial personality disorder. Of the total sample of 306 subjects, 59% admitted to the commission of an offence and 23% to a conviction. Forty-eight per cent admitted to the commission of a gambling-related offence only, 6% to a non-gambling related offence only, and 1 I % to both types of offences. While 95% of gamblers utilised salary earnings as the main source of gambling funds. 28% admitted that engagement in offending behaviour constituted a significant supplementary source of gambling funds. No demographic differences or differences in the offending profile between Gamblers Anonymous and hospital-treated samples of gamblers were found. Consistent with overseas studies, the most common offences were non-violent property crimes of larceny, embezzlement and misappropriation. Gamblers committed a median of 10 offences over an average 10-year-period of excessive gambling with a median value of $300 per offence. The median value of non-gambling related offences was $130. In this study, 15% of subjects met DSM-111 criteria for antisocial personality disorder. The general adult male population rate is 4.5%. The obtained rate is less than the 40% reported by Bland et a/. [ 191 but comparable to the 19% found by Meyer and Fabian ~91. The presence of an antisocial personality was associated with an increased risk of offending. Of those antisocial personality disorders, three-quarters reported offending. However, the majority of offending gamblers did not have antisocial personality disorders. A significant increase in the proportion of gamblers manifesting antisocial behaviours such as lying, irritability and failure to meet financial obligations after the age of 15 years was observed. This increase followed the onset of gambling-induced problems, suggesting that antisocial features occurred in response to efforts made to cope with the effects of excessive gambling. Over two-thirds (64.9%) admitted full knowledge of the criminality and seriousness of their behaviour, while a quarter (24.5%) denied any such awareness. The finding of high prevalence rates for criminal offences does not necessarily indicate a causal connection with gambling. However. Brown [34]


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observed a significant reduction in the frequency of offending following successful treatment, and offence patterns were found to differ from those in the general population. Offences committed by gamblers were confined to non-violent property crimes: forgery, fraud, larceny and tax fraud, and in a minority, robbery, pimping and prostitution [34,44], suggesting that they were motivated by debt. Meyer and Fabian [45] determined delinquency rates in self-help gambling groups in the Federal Republic of Germany. Of the 437 gamblers from 54 groups interviewed, 54.4% admitted to gamblingrelated illegal acts, while 10.3% received convictions. Slightly less than half (42.2%) were for theft, 31 . I % for embezzlement, 26.7% for fraud and 13.3% for forgery, tax evasion or manipulation of gambling machines. A substantial proportion, 13.6%, involved robbery or blackmail. Compared to non-offenders, offenders manifested stronger subjective feelings of dependency on gambling and described more withdrawal-like symptoms. They showed a trend to have gambled more often, for longer periods and with larger stakes, and to have sustained greater losses. Total debts exceeded those of non-offenders by a magnitude of one and a half. Supporting the earlier observations of Blaszczynski and McConaghy 1461, these authors found higher levels of psychosocial problems and emotional escape as the primary motivating factor in the group who committed illegal acts. The tacit assumption that all offences are directly gambling-related is not convincingly supported by existing empirical data. Although some note the distinction, most studies investigating the prevalence of illegal behaviours in samples of pathological gamblers fail to differentiate between gambling- and nongambling-related offences 125,441. It could be argued on the basis of elevated MMPI Psychopathic Deviate scale scores [47] that pathological gamblers are more sociopathic and consequently have an increased predisposition to commit offences independent of their gambling behaviour. In support of such an argument, Moran [48] classified 25% of his sample of 50 gamblers as psychopathic while Custer and Custer [241 suggested that 5% to 7% of a group of Gamblers Anonymous were criminals first and gamblers second. Others [49,50] have noted a high proportion of concomitant gambling problems in populations of prison inmates. Bellringer 15. I] found 60% of 500 inmates of an open

category prison had gambling problems while 20%-30% were serving time as a direct or indirect consequence of their gambling. Lesieur and Klein [52] found 85% of I 1 8 female and 78% of 230 male inmates of a New Jersey jail had gambled in the previous 12 months with 30.5% of the females and 29.6% of the males exhibiting clear signs of pathological gambling. Only 10% of both groups admitted having a gambling problem. These authors noted the association between sociopathy and a higher incidence and greater severity of gambling-related problems. More research is required therefore to answer the question as to whether pathological gambling predisposes to criminal behaviours.

Female pathological gamblers and criminal behaviours Approximately 10% to 20% of pathological gamblers are female. This percentage is rising in response to heightened community awareness of the problems and increased availability of treatment programs. Lesieur 1531 interviewed 50 female Gamblers Anonymous attenders and found that two-thirds (68%) procured monies illegally to support their habit. Ten per cent of women had involved themselves in prostitution. Twenty per cent had arrest records. Female pathological gamblers are more likely to be single, gamble alone, and feel more socially isolated and have less access to finances than males [53].

Adolescence, pathological gambling and crime As noted earlier, up to 90% of pathological gamblers commence their gambling behaviour by 20 years of age, the average age being 12 to 15 years despite the presence of legislation prohibiting access to gambling premises by under-aged adolescents. A high proportion of children and adolescents gamble, with a minority exhibiting traits characteristic of adult pathological gamblers, including illegal behaviours. However, as Fisher [S4] notes, adolescent antisocial behaviours may be causally attributed to gambling but, equally, may be peer-driven or co-exist independently of gambling. In addition, adolescents differ from adults in the avenues open to them to obtain gambling funds and to carry out illegal behaviours.


A. BLASZCZYNSKI. D. SILOVE

In a field survey of 460, 11-16-year-old English school children, Fisher [54] found 277 played fruitmachines. Fruit machines, officially designated as ‘amusement with prize machines’, are popular seaside resort amusement arcade-type machines providing non-pecuniary prizes. These are legally accessible to children under 16 years. Other studies reviewed by Fisher [55] similarly showed that between 50% and 100% of school children surveyed played fruit machines. although a number of others reported much lower rates of 8% to 4070. Fisher, using a modified version of DSM-IV for adolescents. identified 10% of her sample as meeting criteria for pathological gambling. Compared to social gamblers, a significantly higher proportion of adolescents meeting ‘pathological’ criteria engaged in a variety of ‘unsocial/illegal behaviours’ to finance fruit machine play including stealing from family members (46%), stealing from others outside the family and/or shoplifting ( 12%), sale of possessions (31%). truanting to play (8%) or gambling school dinner/travel money (39%). In her comprehensive review of 11 studies on juvenile fruit machine gambling in the United Kingdom, Fisher [551 noted 2% to 23% (an average of 9% across studies) of players admitting to stealing, and 4% to 18% admitting to truanting from schoollwork to play video game or fruit machines. She concluded that overall. fruit machine play was a major leisure pursuit for adolescents and that a minority became addicted with a small percentages of these engaging i n asocial behaviours to supplement gambling monies. Fruit machines do not exist in Australia and by legislation children under 18 years are not permitted to gamble or enter restricted gambling premises in clubs or TAB outlets. In Australia, no studies have been conducted investigating or describing the adolescent behavioural characteristics and illegal activities potentially associated with the fruit machine equivalents of pinball and electronic video game play, activities which are popular and easily accessible to all age groups. The relationship of adolescent non-prize pinball and video game play with adult gambling behaviour is not known. Legislation restricting gambling to persons over 18 years old is not effective in preventing adolescents and children from gambling. In the USA, Lesieur [25] surveyed 892 eleventh and twelfth grade students from four New Jersey high schools, two of

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which were in close proximity to Atlantic City casinos. By chance, females and students from middle class backgrounds were over-represented in the sample, yet 9 1 % reported having gambled at least once, and 31.8% at least weekly over the immediate preceding one year period. Card playing and casinos were the most favoured forms engaged in by 45% of students, while 29% wagered on horse-racing. Just over half Lesieur’s student sample stated that they had gambled in the company of parents, while 15% either had arguments with parents over gambling or were secretive over such involvement. Overall, 3.5% of students exhibited four or more index signs for pathological gambling, with a slightly higher figure of 5.370 expressing a desire but inability to cease gambling. Of the total sample, 10% reported obtaining gambling funds through illegal avenues, S7c through drug sales. 2% through stealing from someone at home. 3% from shoplifting, 4% from other types of theft, I .5% from involvement in the illegal gambling industry, and 3.5% from other non-specified activities. Lesieur‘s findings did not suggest a relationship between close proximity to casinos and problem gambling [56]. Variables of sex, parental gambling and extent of personal gambling were significantly related to pathological gambling indicator signs, suggesting that males who gambled frequently and were from a family background that included gambling were most at risk to develop pathological gambling traits and to utilise illegal means to obtain gambling funds. No studies have investigated the prevalence of gambling behaviour in Australian adolescents. However, our clinical experience indicates that a minority of adolescents do steal to support their gambling habits, but the presence of major and/or drugrelated crime in this age bracket is the exception.

Pathological gambling among prisoners The British Royal Commission on Gambling [S71 considered that gambling was of marginal importance in the conduct of petty or serious criminal acts. Similarly, Cornish [ 111 concluded that gambling was a covariate of antisocial personality or reflected a ‘disorganised and feckless lifestyle’of extravagance. That certain crimes were directly linked to excessive gambling was not disputed by these authors but they argued that the desire to live extravagantly in a style which included gambling. or gambling to replace


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funds embezzled for various other purposes, were more apparent motivating factors. Even if a causal link did exist, they claimed it accounted for an insignificant proportion of crimes. The conclusion of both the Royal Commission on Gambling [57] and Cornish [ 1 I], that the prevalence of gambling-related crime was low, was predicated on minimal empirical data. Although rates between 1% to 38% of problem gambling within prison populations have been reported [49,50,58], methodological inadequacies inherent in these studies make interpretation of data difficult. Consequently, the ability to tease out the degree to which crimes committed were specifically gambling-related is not possible. Recently, a number of surveys have reported findings suggesting higher prevalence rates of pathological gamblers among prisoners and a more direct relationship between excessive gambling and crime. Levey [58] determined the incidence of offenders with a gambling problem among the caseload of an unspecified number of probation officers in England. Responses were obtained from 230 clients known to gamble. They represented 14% of the probationers’ total population of cases. Of these clients, 13% acknowledged gambling to be a problem. Levey reported that gamblers accounted for 2% of the known caseload. Lesieur and Klein [52] used a validated pathological gambling questionnaire to classify 30% of 448 prisoners as pathological gamblers and concluded that prisoners were 10 to 15 times more likely to be pathological gamblers than the general population. From interviews with Gamblers Anonymous members, prison security personnel and probation officers, Bellringer [5 11 concluded that 60% of male prisoners had gambling problems and that in 20% to 30% of cases, gambling was a significant contributing factor in offending. Without specifying selection criteria, Bellringer administered a questionnaire to 12 inmates who presumably were attending Gamblers Anonymous meetings. Results showed that the imposition of a jail sentence was the direct result of gambling-related offences in 11 inmates with only four stating it to be their first custodial sentence. Three inmates stated that the threat of prison was not a deterrent for future gambling. Jones [59] administered the South Oaks Gambling Screen (SOGS) diagnostic questionnaire and an Assessment of Contribution of Gambling to Offending scale (ACGO) to 60 prison inmates of

prisons in Western Australia. Of the sample, 22% (n = 13) met criteria for classification as ‘probable problem gamblers’. These subjects were further separated into two groups, ‘gambling related offenders’ and ‘non-offence related’ on the basis of responses to the ACGO. Eight (13%) inmates reported gambling related offences with three of these (5%) citing gambling as the main reason for their offending. The majority (75%) of inmates reporting gambling related offences had been convicted by age 17 years with 62.5% being imprisoned by 19 years of age compared to 42.5% of those inmates reporting nongambling related offences who were found to have been convicted by age 17 years. In 75% of cases the type of crime was robbery. The amount of money involved in offences ranged from $200 to $4 million with a median figure of $62 000. As expected, there was a functional relationship between gambling-related offences and frequency and intensity of gambling behaviour. All gambling related offenders gambled 2-3 hours per session 3-5 times per week, and incurred weekly losses of $50 to $2000 (median = $1300) on an income of $100 to $600 (median = $250) per week. Significantly, 48% of the sample of gamblingrelated offenders reported that they had attempted to cease gambling. with 38% indicating that they would be less likely to re-offend if they could control their gambling.

Pathological gambling as defence in criminal offences

In early colonial Australian history, the association between gambling and criminal behaviours was recognised by the judiciary. However, it was limited to theft to cover gambling debts, disorderly conduct, cheating or winning more than legally prescribed limits, and was not considered of sufficient importance for magistrates to legislate for the restriction of gambling [60]. Pathological gambling as a concept was not recognised nor used in legal defence. It was only in response to the classification of pathological gambling as a psychiatric disorder by DSM-111 [ 141 in 1980 that more attention was directed toward understanding the link between crime and gambling. This shift has implications for forensic psychology and psychiatry. The early uncritical acceptance of pathological gambling as a disorder led the American National Council on Compulsive Gambling to make


A. BLASZCZYNSKL D. SILOVE

the questionable assertion that ‘the APA (American Psychiatric Association) diagnostic criteria had taken compulsive gambling out of the criminal, antisocial department and re-defined this behaviour as a neurosis, as are all compulsions’ [61]. The National Council’s intention was to convince the courts that pathological gamblers should not be considered criminals and that a diagnosis of pathological gambling should @so f k f i r c ~eliminate ~ culpability for any offences committed to acquire money for gambling purposes. This resulted in defence pleas of not guilty by reason of insanity or diminished responsibility. A plea of not guilty by reason of insanity was first successfully used in Connecticut in the case of the State versus Lafferty [62]. Lafferty. an accountant, was charged with two counts of embezzling funds in excess of US$300 000. His defence implored the American Law Institute’s Model Penal Code which supports a defence of insanity if at the time of the commission of an offence. and as a result of mental disease or defect, a defendant lacks the substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law. Defence argued that Lafferty had been independently diagnosed a pathological gambler by an expert psychologist and two State psychiatrists. Given the fact that the diagnostic criteria of DSM-I11 specified an inability rather than, as did later versions [15,16], a failure to resist the impulse to gamble as an essential feature, the court accepted an impaired capacity on the part of Lafferty to conform his conduct to the requirements of the law. Lafferty was found not guilty by reason of mental disease and placed in the custody of the Commissioner of Mental Health at Norwich State Hospital where he remained for a short period. Not unexpectedly, there soon emerged a plethora of court cases in which pathological gambling was presented in support of pleas for diminished responsibility. Although there were a number of acquittals and hung juries in several State jurisdictions [8], prosecutors rapidly identified the logical flaws in the diminished responsibility argument, resulting in the courts rejecting this defence strategy [6,631. Rachlin, Halpern and Portnow 1601 and Rachlin, Abraham and Portnow [64] were critical of the Connecticut court’s decision in the case of Lafferty, and rejected the claim that an impulse disorder such as pathological gambling can form the basis for a valid plea of lack of criminal responsibility. These

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authors referred to society’s rejection of the principle that alcoholism or drug addiction be used as valid defences for crimes committed in support of those habits, and further point to the danger of analogous arguments being expanded to include virtually any behaviour suggestive of a loss of impulse control. Thus we see a recourse to concepts of a premenstrual tension syndrome and post-traumatic stress disorder as arguments for diminished responsibility for serious crimes of assault and murder. According to Campbell [65]. the presence of a ‘disease of the mind’ acts to differentiate the legal concept of insanity from other conditions such as excitability, lack of self control or impulsivity. However, Campbell also argued that it was tenable for all psychiatric conditions to be regarded as being diseases of the mind, even including psychopathy. What he considered essential from a legal perspective was the demonstration that the condition be severe enough to impair the volition, reason or intent. With the exception of cases where gambling is secondary to a schizophrenic or manic condition, there is little credible evidence to suggest that gambling is a disease of the mind of such a nature or severity as to cause impairment to judgement or volition. A plea of insanity therefore cannot in general be accepted. An argument of diminished responsibility is equally unsustainable with the issue of ‘relevance’ being crucial. As an illustration, kleptomania is defined as an urge to shoplift. Shoplifting is an offence. The urge is therefore directed specifically to an act which in itself is an offence. In pathological gambling the aberrant urge is to gamble, but gambling of itself is not an offence. The crime (for example, theft) remains tangential and in a sense independent of the urges or impulses associated with the primary disorder. A diminished responsibility defence for pathological gambling thus could only reasonably be acceptable if the offence is that of engaging in an illegal form of gambling. This principle was clearly enunciated in the case of the United States versus Shorter (1985) 161. Shorter, an attorney, was charged with one count of tax evasion and six counts of wilful failure to pay Federal tax. Forensic psychologists and psychiatrists were unanimous in rejecting the contention that pathological gamblers were unable because of their disorder to meet taxation obligations. A related issue relates to that of will and volitional control. Will is a goal-directed striving or intention


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formed by cognitively planned motivation 1661. Volition is the behavioural exercise of the will. Criminal responsibility occurs in the context of the will/intent to act in a certain manner and with the capacity to choose to so act or not. In offending, the majority of gamblers retain awareness of the nature and wrongfulness of their acts, both during and after the event. Cognitive distortions may allow justification and rationalisation of their behaviour, but their intrinsic capacity to form intent is indisputably unimpaired. It cannot be argued that the presence of aversive psychological states or withdrawal symptoms is of sufficient magnitude to interfere with volition or knowledge of the wrongfulness of acts. The presence of withdrawal symptoms itself is contentious, but even if they are present, they are not so severe as to drive a gambler to offend in order to reduce physiological aversive states. Psychological states of depression and anxiety caused by financial or external stress may exist but again these usually cannot justify recourse to criminal acts. Thomas [67], in her review of fraud offenders, remarked that situational pressures, opportunities, and personal characteristics including cognitive rationalisation, commonly typify such heterogenous groups of perpetrators. Several subclassifications of fraud perpetrators were identified, some of whom were repeat offenders and deemed to be suitable for psychological interventions, but no consideration was given to diminished responsibility because of intervening psychosocial pressures. Fundamental to responsibility is the issue of volition. Responsibility is diminished where alteration in consciousness or mood impairs volition as occurs in hypnosis, epileptoid seizures, and dissociative states. When there is a clear sensorium but some difficulty in controlling will, impulses or urges, such acts are nevertheless still considered at law to be voluntary [65].Sims [66] defines impulsive acts as those ‘executed forcefully with no deliberation or reflection, under the influence of a compelling pressure that restricts the subject’s freedom of will’ [66]. Although pathological gambling is defined as a disorder of impulse control, there is minimal evidence in support of high levels of impulsivity in affected individuals. DSM-III-R acknowledged this by stating that the urge may or may not be premeditated, but this statement was deleted in DSM-IV. Despite this, impulsive acts are rarely an all-or-none phenomenon or totally

impulsive, and in pathological gambling, the impulse relates to gambling and not to committing an offence. In conclusion, there is little support for the argument of true loss of volitional control in pathological gambling sufficient to warrant a defence of diminished responsibility. The German criminal courts. on the other hand, appear to have adopted a more lenient stance regarding diminished culpability for gambling-related crimes [9,681. The courts have applied the ruling that a plea of diminished culpability was acceptable if ‘pathological gambling [was] the decisive factor which ... led to a criminal offence, it may be assumed that control of the action was reduced due to an addiction’ [67] and if a severe personality change is manifested and due directly to pathological gambling (German Federal Court verdict 8 November 1988 - 1 StR 544/88, LG Ausburg). The provision of guidelines for the courts in this matter have been drawn from the supreme court decisions relevant to the area of drug addiction. Personality changes are considered to impinge upon the gambler’s capacity to control behaviour but, as in the United States of America, no cases have been reported in which appreciation of the wrongfulness of the act itself has been suspended [9J. Personality changes may be gauged by impairment to three broad areas of functioning: reduction of personal development and ambitions: interpersonal dysfunction; and emotional constriction typified by loss of self-esteem and volition. Accordingly, Meyer and Fabian 191 argue that volition is impaired where the gambling motivation is so strong as to be no longer controllable. The link is demonstrated by the following parameters: exhaustion of gambling funds; the offence is committed in the context of gambling; the acts are impulsive; and the funds are redirected exclusively to further gambling, not for other personal economic gain. Meyer and Fabian [9] evaluated 70 forensic patients presenting before the German judiciary in which a plea for diminished culpability was entered. The percentage of antisocial personality disorder was found to be four times higher in those cases where such a plea of diminished responsibility was unsuccessful as compared to successful cases. It would appear that where there is evidence of a premorbid antisocial personality disorder, non-gambling-related psychosocial dysfunction and associated non-gambling-related crimes exist, the likelihood



of the courts accepting a plea of diminished responsibility is grossly reduced. However, this is not invariable. In some cases of early delinquency, individuals may show an absence of criminal acts over a considerable period until confronted with gamblinginduced financial crises. In these cases, Meyer and Fabian argue a causal relationship between the offence and gambling supporting a plea of diminished responsibility.

2.

Conclusion

3.

The literature supports the contention that pathological gambling is a risk factor for offending under circumstances where excessive levels of debt have been accumulated and where funds to sustain habitual patterns of gambling are lacking. The risk factor is increased in the presence of an antisocial personality disorder but the majority of offenders are not antisocial personality disordered. Overall. the weight of the argument holds against accepting pathological gambling as a factor reducing criminal responsibility for offences. Where there is clearly defined evidence in support of a strong relationship between gambling and crime in a particular case, the presence of a diagnosed pathological gambling condition should be a factor considered by the courts in imposing sentence, not in respect to the determination of guilt or diminished responsibility, but in recommendations for treatment. Treatment interventions are available and represent a cost-effective strategy that reduces risk of recidivism. Referral to treatment could be mandated as part of bond conditions although this has ethical implications in its own right and should be used sparingly. Treatment strategies are reviewed in detail by Blaszczynski [30,69] and Blaszczynski and Silove [70]. In excess of 60% of gamblers respond positively to cognitive and behavioural interventions with a concomitant reduction in financial distress emerging over the longer follow-up period. The alleviation of financial stresses represents a reduction in one of the major risk factors for offending.

Acknowledgements

Research Council. The views expressed are the responsibility of the authors and are not necessarily those of the Council.

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