Accommodation without Exculpation? The Ethical and Legal Paradoxes of Borderline Personality Disorder

Abstract

Borderline personality disorder (BPD) is a complex mental disorder that straddles the line between psychosis and neurosis. As such, questions about the moral and legal responsibility of persons with BPD are especially vexing. Persons suffering with borderline personality disorder typically are impulsive and suffer from impaired volition. They also lack a stable sense of self. Nonetheless, persons with borderline personality disorder often hold long-term, stable preferences—often related to discontinuing particular problematic behaviors—and have a degree of capacity that we argue creates prima facie conditions for holding them ethically and legally responsible. However, this limited capacity often falls short in smoothly accommodating day-to-day relationships. We argue that while a certain degree of accommodation is appropriate for persons with BPD, the diagnosis of BPD does not by itself provide sufficient grounds for voiding responsibility for criminal acts. Using a hierarchical theory of autonomy recognizing first- and second-order volition, we propose a sliding scale be used to ascertain the degree to which a person with BPD should be exculpated weighing the graveness of the act against an estimation of the congruence of second- and first-order volitions.