tag:theconversation.com,2011:/au/topics/insanity-defence-13559/articlesInsanity defence – The Conversation2023-07-31T19:39:17Ztag:theconversation.com,2011:article/2106302023-07-31T19:39:17Z2023-07-31T19:39:17ZWhat does ‘infanticide’ mean in NZ law? And what must the jury decide in Lauren Dickason’s trial?<figure><img src="https://images.theconversation.com/files/540061/original/file-20230731-189599-uh57aj.jpg?ixlib=rb-1.1.0&rect=30%2C0%2C6811%2C4547&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Lauren Dickason is being tried at the Christchurch High Court.</span> <span class="attribution"><span class="source">Getty Images</span></span></figcaption></figure><p>Lawyers are fussy about language because it is their job to argue about its implications. The current <a href="https://www.stuff.co.nz/national/crime/132635661/what-we-learnt-from-the-second-week-of-lauren-dickasons-trial">trial of Lauren Dickason</a> is a case in point, and the jury has a complex task in front of it.</p>
<p>Dickason is charged with the murder of her three young children. She denies the charges, with her defence seeking findings of “insanity” and “infanticide”. The latter may seem like a statement of the obvious, given Dickason does not deny the killings. But the word has a very distinct meaning in law.</p>
<p>What legislation and other sources of law mean is often contestable, and there may be specialised definitions. An added complication is that the rules and words in play may have been formulated decades ago.</p>
<p>This is often the case in criminal law, including the law of homicide and the law relating to insanity. Since homicide trials often have a high profile, public understanding of these complications is important. </p>
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<h2>Murder and manslaughter</h2>
<p>New Zealand’s main homicide law is found in the <a href="https://www.legislation.govt.nz/act/public/1961/0043/latest/DLM327382.html">Crimes Act 1961</a>. But the language used reflects a structure that goes back to English law from centuries ago, and is split into two offences: murder and manslaughter. </p>
<p>Basically, murder is killing someone with “malice aforethought”, and manslaughter is any other culpable killing. (A killing will not be homicide if there is a justification, such as reasonable force in self-defence.)</p>
<p>There were originally three types of malice. “Express malice” was a deliberate killing. “Implied malice” was when the person intended serious harm and showed a lack of care for human life. “Constructive malice”, which appears in US TV shows as the “felony murder rule”, arose from killing when committing another violent offence. </p>
<p>With updated language, we still have that basic structure in New Zealand. But variations were introduced largely to avoid the formerly mandatory death penalty for murder, by allowing the offence to be stepped down to manslaughter. </p>
<p>These are sometimes referred to as “defences” to murder, but they are only partially so because they lead to conviction of another offence. </p>
<p>So, if the person charged was part of a mutual suicide agreement, that is expressly classified as manslaughter. We used also to allow provocation to turn a killing into manslaughter, though only if a reasonable person would also have lost self-control. </p>
<p>That condition was removed after Clayton Weatherston tried to use it in his trial for the 2008 <a href="https://www.stuff.co.nz/national/crime/2866308/Clayton-Weatherston-jailed-for-minimum-18-years">murder of Sophie Elliott</a>. </p>
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<h2>Infanticide and insanity</h2>
<p>Some other countries also allow a manslaughter conviction where someone has a mental disorder that reduces their moral culpability for a killing. New Zealand has never had such “diminished responsibility” – except in relation to infanticide.</p>
<p>Infanticide has a <a href="https://www.legislation.govt.nz/act/public/1961/0043/16.0/DLM329332.html">legalistic meaning</a> in the courtroom: it does not mean the killing of an infant. Rather, it is an offence that can only be committed by a woman. </p>
<p>Secondly, it must involve a child of that woman who is under ten years of age. It must involve what would otherwise have been murder or manslaughter. </p>
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Read more:
<a href="https://theconversation.com/murder-or-infanticide-understanding-the-causes-behind-the-most-shocking-of-crimes-79808">Murder or infanticide? Understanding the causes behind the most shocking of crimes</a>
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<p>Crucially, the jury must find that that the woman “should not be held fully responsible” because of the extent to which “the balance of her mind was disturbed” from the effects of childbirth, lactation or any disorder caused by childbirth or lactation. </p>
<p>If this series of steps is met, then the offence is called infanticide, which carries a maximum sentence of three years. </p>
<p>But the legislation also notes that if the defendant’s disorder was so great that there was insanity, then there must be a “special verdict of acquittal on account of insanity caused by childbirth”. </p>
<h2>Modern psychiatry and Victorian language</h2>
<p>The <a href="https://www.legislation.govt.nz/act/public/1961/0043/latest/DLM328219.html">law relating to insanity</a> still uses language from Victorian times. It applies to all offences, though it is most prominently used in homicide cases. </p>
<p>It requires “natural imbecility or disease of the mind” producing a situation in which the defendant does not know what they are doing, or does not know that it is morally wrong. Clouded understandings do not amount to insanity. </p>
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Read more:
<a href="https://theconversation.com/how-the-insanity-defence-against-a-murder-charge-works-50188">How the insanity defence against a murder charge works</a>
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<p>It is not limited to disorders arising from childbirth: that is an overlap only in an infanticide setting. The doctors giving expert evidence have to try to mould modern understandings of psychiatry into this outdated legal framework, which has limited nuance to it. </p>
<p>A finding of insanity used to lead to the special verdict of “not guilty by reason of insanity”, which in turn usually led to detention in a psychiatric setting. The <a href="https://www.legislation.govt.nz/act/public/2021/0055/33.0/whole.html">Rights for Victims of Insane Offenders Act 2021</a> means the verdict is now “act proven but not criminally responsible on account of insanity”, though with the same consequences. </p>
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Read more:
<a href="https://theconversation.com/can-juries-still-deliver-justice-in-high-profile-cases-in-the-age-of-social-media-193843">Can juries still deliver justice in high-profile cases in the age of social media?</a>
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<h2>The jury’s challenge</h2>
<p>The task for the jury in the Lauren Dickason trial is not helped by the outdated language, however calmly and professionally the judge seeks to explain it. </p>
<p>Having considered whether the deaths would otherwise have been murder or manslaughter, they will then have to consider whether the expert evidence shows there was some disturbance in her mental health. </p>
<p>If so, and if it was caused by childbirth or lactation, was it far enough down the line to amount to infanticide? Or did it go so far as to amount to insanity? The latter can also arise from a mental disorder not linked to childbirth. </p>
<p>This complexity is a good illustration of why we should value only the opinion of those who hear all the evidence, and who have the task of deciding the verdict.</p><img src="https://counter.theconversation.com/content/210630/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Kris Gledhill does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The term ‘infanticide’ has specific meanings in a courtroom and is related to the separate defence of ‘insanity’. But legal language is contestable and can be archaic – adding to a jury’s burden.Kris Gledhill, Professor of Law, Auckland University of TechnologyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/501882015-11-06T02:45:23Z2015-11-06T02:45:23ZHow the insanity defence against a murder charge works<p>A Melbourne man was found not guilty this week of murdering a homeless man by reason of mental impairment. The man, Easton Woodhead, who suffers from schizophrenia, killed Morgan Perry, believing Perry had stolen his motorcycle. A Supreme Court jury <a href="http://www.theguardian.com/australia-news/2015/nov/02/melbourne-man-found-not-guilty-of-stabbing-of-homeless-man?CMP=Share_iOSApp_Other?CMP=Share_iOSApp_Other">acquitted Woodhead</a> of murder on the basis of mental impairment. </p>
<p>This type of case frequently raises concerns about the validity of this defence. There is a preconception that the mental illness and related defences are seen in the public discourse as “get out of jail free” cards; illegitimate excuses – perhaps even fabricated or made up – allowing some individuals to “get off” criminal charges. According to this logic, successful mental illness defences are suspect.</p>
<p>But, contrary to this logic, we should be concerned about the low numbers of people charged with criminal offences who raise what is known in criminal law as the mental impairment or mental illness defence. </p>
<p>It’s hard to be precise about numbers here, but we do know that very few individuals successfully raise defences such as insanity or mental illness. The NSW Law Reform Commission found just <a href="http://www.lawreform.justice.nsw.gov.au/Documents/report%20138.pdf">32 successful defences</a> in 2011-12. </p>
<h2>Why is the defence so rarely used?</h2>
<p>What’s going on here? How does this square with what we know about the high numbers of <a href="http://www.aihw.gov.au/publication-detail/?id=60129543948">individuals in prison with mental illnesses</a>? </p>
<p>Part of the explanation is the difference between medical and legal definitions of “insanity”. Only a selection of mental illnesses, as understood by psychiatrists and psychologists, qualify as mental illness for the criminal law. </p>
<p>For the insanity defence, mental illness must affect the individual in a particular way. It must affect his or her reasoning processes – his or her cognitive capacity – not “just” affect emotion or volition. This immediately rules out many genuine mental conditions that can seriously impact someone’s life.</p>
<p>The difference between legal and medical definitions is part of the reason for the gap between numbers of prisoners with mental illness and the use of the mental illness defence. Another reason for this gap, and the injustice that results from it, is to do with the criminal law. </p>
<p>Here’s the rub: in an attempt to respect people as autonomous individuals, the criminal law assumes everyone is sane and responsible for their actions, and makes the test for an insanity defence narrow and limited. </p>
<p>Assuming everyone charged with a criminal offence is sane, and responsible for their actions, entails assuming that individuals have particular capacities (of cognition, volition and morality). If an accused lacks the necessary capacities, he or she is not responsible and cannot be held to account for his or her actions in the context of a criminal trial and conviction.</p>
<p>Raising the insanity or mental illness defence involves making a claim of non-responsibility. </p>
<h2>What is the legal test for ‘insanity’?</h2>
<p>NSW criminal law relies on the <a href="http://www.bailii.org/cgi-bin/markup.cgi?doc=/uk/cases/UKHL/1843/J16.html&query=daniel+and+m'naghten&method=boolean">M’Naghten Rules</a> to define the test for insanity. The M’Naghten Rules require that: (1) an individual suffers from a “defect of reason”, which is (2) caused by a “disease of the mind”, and, as a result, (3) he or she does not know the “nature and quality” of the act or that it was wrong. </p>
<p>This language sounds arcane, and it is. The M’Naghten decision dates from 1843. The effect of the decision is that it is really difficult to raise the mental illness defence successfully. </p>
<p>Like other states in Australia, Victoria, where Woodhead was tried, has a statutory insanity provision based on the M’Naghten Rules.</p>
<p>The limitations of this test are clear:</p>
<ol>
<li><p>not all severe mental illness affects reasoning capacity;</p></li>
<li><p>no psychiatrists use the term “disease of the mind”; and</p></li>
<li><p>requiring people to be so profoundly affected that they don’t know the nature and quality of their act or that it is wrong sets the bar too high.</p></li>
</ol>
<p>The vast majority of people with serious mental illness would fail this test.</p>
<p>We need to bring the law up to date with current medical knowledge. We need a genuinely accessible insanity defence. This would help direct people who really need it into treatment. </p>
<h2>Defence does not let people ‘walk free’</h2>
<p>In Australia and elsewhere, an accused found to be insane is exposed to special court powers of disposal. If an individual is not criminally responsible, he or she isn’t free to walk away as if acquitted. Detention in a secure psychiatric unit in a prison can be just as long – or longer – than any prison term. Treatment rather than punishment is not a “get out of jail” card.</p>
<p>If a genuinely accessible insanity defence provides treatment for people who really need it, it’s better for both the individual and society.</p>
<p>And, before we assume any option other than “proper” punishment is just too lenient, we must pause to think about what having an insanity defence that is genuinely accessible really means. </p>
<p>Exempting insane defendants from <a href="https://theconversation.com/genes-made-me-do-it-genetics-responsibility-and-criminal-law-27395">criminal responsibility</a> is the flipside of holding people to account only when they are properly agents of their own actions. This means it is the “price” we pay for a system that treats us all as responsible unless proven otherwise.</p><img src="https://counter.theconversation.com/content/50188/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Arlie Loughnan's research on criminal responsibility is supported by Australian Research Council Grant No. DE130100418.</span></em></p>Despite the many people with mental illness who go to prison, successful defences of mental impairment are rare. But this is not a ‘get out of jail free’ card and should be more accessible.Arlie Loughnan, Associate Professor in Law, University of SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/406112015-04-27T10:20:02Z2015-04-27T10:20:02ZJames Holmes trial puts sanity on the stand<p>The murder trial of alleged Aurora, Colorado shooter James Holmes would seem an open-and-shut case.</p>
<p>The trial, which starts on April 27 in Arapahoe County District Court, begins with all sides in agreement that Holmes burst into a packed movie theater in the Denver suburb of Aurora, tossed tear gas canisters into the crowd and opened fire, killing 12 people and injuring 70 others. </p>
<p>Holmes <a href="http://bigstory.ap.org/article/9859cdb47e7f4b40ae1e82f904bf8089/guide-colorado-theater-shooting-trial">is charged</a> with 24 counts of first degree murder, 140 counts of attempted murder and one charge of possession of explosives. And Holmes’s own lawyers <a href="http://www.latimes.com/nation/la-na-james-holmes-20150119-story.html">admitted</a> that their client committed the horrific crime in pretrial court filings. So did Holmes’s <a href="http://i2.cdn.turner.com/cnn/2014/images/12/19/holmes.statement.12-19-2014.pdf">parents</a> in a widely published statement.</p>
<p>Much of US popular opinion has also already condemned Holmes for the crime. Blogs, tweets, and articles define Holmes as a “<a href="http://chicksontheright.com/blog/item/27144-there-s-some-serious-crazy-happening-at-jury-selection-for-the-trial-of-james-holmes-which-is-kinda-fitting-actually">lunatic</a>” with “<a href="http://nymag.com/daily/intelligencer/2013/03/james-holmess-new-beard-looks-crazy.html">crazy hair</a>” and “<a href="http://nymag.com/daily/intelligencer/2012/09/james-holmes-loses-crazy-hair-keeps-crazy-eyes.html">crazy eyes</a>” who “<a href="http://www.dailykos.com/story/2013/04/01/1198514/-Does-James-Holmes-the-Aurora-killer-deserve-the-death-penalty">deserves death</a>.” </p>
<p>The desire to see justice done runs high, and understandably so. </p>
<p>Holmes, however, has pleaded not guilty by reason of insanity, meaning that jurors will be asked to determine his mental state at the time of the killings. </p>
<p>If the jury finds that Holmes was sane at the time of the shooting he could face the death penalty. Indeed, the court required that jurors voice a willingness to impose death in order to be seated at the trial. If found insane, Holmes <a href="http://www.nytimes.com/aponline/2015/01/15/us/ap-us-colorado-shooting-insanity-plea.html">will be committed indefinitely</a> to a Colorado state mental hospital.</p>
<p>Yet the task facing jurors as the case unfolds over the coming months is anything but straightforward.</p>
<p>Jurors will likely be presented with several conflicting notions of sanity and insanity over the course of the trial. And they will be forced to confront widely held cultural assumptions about mental illness and violence. </p>
<h2>Judging sanity and insanity</h2>
<p>Colorado, like many states, <a href="http://www.reuters.com/article/2013/11/16/us-usa-shooting-denver-idUSBRE9AF00820131116">prohibits</a> the execution of people with serious mental illness – a position also <a href="http://www.huffingtonpost.com/dr-xavier-amador/the-state-of-colorado-vs-_b_6459636.html">supported</a> by the American Bar Association, the American Psychiatric Association, the American Psychological Association, and the National Alliance on Mental Illness. </p>
<p>In a traditional “insanity defense” trial alleged perpetrators attempt to prove that they were “insane” at the time of a crime and thus not fully culpable. But in Colorado the burden is on the prosecution to demonstrate that defendants were “sane,” if even fleetingly so, when planning and executing murders.</p>
<p>Prosecutors will thus argue that Holmes launched a <a href="http://us-news.us/theater-shooting-case-draws-huge-pool-of-prospective-jurors-2/">methodical, premeditated plan</a> that only a sane person could muster, while the defense will present evidence that Holmes was in the “<a href="http://abcnews.go.com/blogs/headlines/2013/07/james-holmes-admits-aurora-theater-shootings-was-having-psychotic-episode/">throes of a psychotic episode</a>” and unable to discern right from wrong. At stake is Holmes’s life. </p>
<p>This format will likely lead to an intricate series of in-court machinations in which prosecutors will attempt to show a method to Holmes’s madness while at the same time discounting the assessments of <a href="http://www.pbs.org/newshour/bb/social_issues-july-dec12-colorado_07-27/">mental-health experts</a> who treated Holmes in the months before the shooting. </p>
<p>The defense team will likely highlight the downward spiral of a defendant who at one time was a brilliant neuroscience student.</p>
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<img alt="" src="https://images.theconversation.com/files/79325/original/image-20150425-14574-fx0qmi.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/79325/original/image-20150425-14574-fx0qmi.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=398&fit=crop&dpr=1 600w, https://images.theconversation.com/files/79325/original/image-20150425-14574-fx0qmi.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=398&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/79325/original/image-20150425-14574-fx0qmi.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=398&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/79325/original/image-20150425-14574-fx0qmi.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=501&fit=crop&dpr=1 754w, https://images.theconversation.com/files/79325/original/image-20150425-14574-fx0qmi.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=501&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/79325/original/image-20150425-14574-fx0qmi.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=501&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Not a diagnosis.</span>
<span class="attribution"><a class="source" href="http://www.shutterstock.com/pic-86506780/stock-photo-dictionary-series-insanity.html?src=sQDpW2HzBDs20Zj2zYImAQ-1-34">Dictionary page via www.shutterstock.com.</a></span>
</figcaption>
</figure>
<h2>Insanity is a legal term, not a psychiatric diagnosis</h2>
<p>Complicating matters further, we might assume that psychiatrists and other mental health professionals determine sanity and insanity. </p>
<p>But in a courtroom, sanity and insanity are legal terms that link to culpability, not to psychiatric diagnosis. Legally, sanity (or <a href="http://www.merriam-webster.com/dictionary/compos%20mentis">compos mentis</a>) implies that a person is of sound mind and therefore can bear responsibility for his or her actions. It is often defined as the absence of insanity (or <a href="http://www.merriam-webster.com/dictionary/compos%20mentis">non compos mentis</a>). </p>
<p>While mental health experts often weigh in on insanity cases, they generally do so using legal frameworks. That’s because the term insanity <a href="https://www.psychologytoday.com/blog/in-therapy/200907/the-definition-insanity-is">does not appear</a> in the Diagnostic and Statistical Manual of Mental Disorders (<a href="http://somatosphere.net/2014/03/manual.html">DSM 5</a>), psychiatry’s diagnostic bible. The DSM also contains no guidelines for assessing mental health rather than mental illness. In other words, in a traditional mental-health framework psychiatrists have neither means nor methods to define someone as normal. </p>
<p>While some psychiatric diagnoses might be linked to the impairment of “reality testing,” the function by which a person recognizes that their observations and perceptions adequately reflect what is actually happening in the real world, there are <a href="http://ajph.aphapublications.org/doi/pdfplus/10.2105/AJPH.2014.302242">no diagnoses</a> that predict violence or crime before they happen, nor are there psychiatric criteria for discerning something called sanity. </p>
<p>Given this terrain, jurors might be faced with the complex task of making life-or-death decisions about criminality and mental illness based on information about which even highly qualified legal and mental health <a href="http://www.denverpost.com/news/ci_25214063/james-holmes-insanity-case-poised-become-battle-experts">experts</a> <a href="http://cogsci.stackexchange.com/questions/158/what-is-the-definition-of-sanity-how-can-i-prove-someone-either-sane-or-insane">do not agree</a>.</p>
<h2>Stereotypes about mental illness and violence</h2>
<p>Jurors will also be asked to check their assumptions about violence and mental illness at the courtroom door. </p>
<p>US popular culture frequently <a href="http://psychcentral.com/archives/violence.htm">associates</a> severe mental illness with violence and aggression, and these associations are given even more authority <a href="http://ajph.aphapublications.org/doi/pdfplus/10.2105/AJPH.2014.302242">in the aftermath of mass shootings</a>. </p>
<p>Yet research consistently shows that assumptions about insane violence are often based on <a href="http://jacksonville.com/opinion/editorials/2015-04-22/story/exploding-stereotypes-involving-mental-illness">stereotypes</a>. As an aggregate group, people with mental illness are overwhelmingly more likely to be the <a href="http://ajph.aphapublications.org/doi/pdfplus/10.2105/AJPH.2014.302242">victims of violence</a>, including gun violence, rather than the perpetrators of it. </p>
<p>A focus on mental illness as causal in crime often leads people to overlook other, <a href="http://news.vanderbilt.edu/2015/01/james-holmes-mass-shooting-trial/">plausible risk factors</a> for gun violence, such as drugs or alcohol, past histories of violence, or ready access to guns. </p>
<p>Here as well, the framework of the trial may present jurors with complex and seemingly contradictory positions. </p>
<p>Lawyers defending Holmes might invoke problematic stereotypes of crazed violence in order to reinforce the notion that their client was mentally ill. </p>
<p>The prosecution team, on the other hand, may ask jurors to transcend their stigmatizing assumptions about violence and mental illness – indeed the very assumptions that advocates for mental illness justice often ask society to critically address – in order to convict and condemn a man who has a history of mental illness. </p>
<h2>When mental health expertise collides with legal expertise</h2>
<p>None of this in any way excuses Holmes’s actions or minimizes the unimaginable suffering that they produced. And yet, as the courtroom drama plays out over the coming months, it seems incumbent on us to recognize that the trial will ask jurors to make decisions about sanity and insanity that, in the context of the courtroom, are highly nuanced and potentially contradictory. </p>
<p>Prosecutors will argue that a man with a history of mental illness was sane at the time of the shooting, while attorneys charged with defending their client will do so by depicting him as stereotypically mentally ill. Mental health expertise will collide with legal expertise. And deeply embedded cultural assumptions about violence and mental illness will be called into question.</p>
<p>The ways jurors navigate these complex issues will go a long way toward determining the outcome of the trial and the larger meanings that we take from it. </p>
<p>If handled fairly, then a proceeding that aims to mete out retribution will also provide an object lesson in justice. </p>
<p>But if man who is revealed over the course of the proceedings to have been severely mentally ill when he committed a crime is put to death, then the legacy of an unconscionable act of savagery will be marred by one final act of barbarism.</p><img src="https://counter.theconversation.com/content/40611/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jonathan M. Metzl does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Jurors will likely be presented with conflicting notions of sanity and insanity. And they will be forced to confront widely held cultural assumptions about mental illness and violence.Jonathan M. Metzl, Director, Center for Medicine, Health, and Society; Professor of Sociology and Psychiatry , Vanderbilt UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/342922014-11-25T03:52:33Z2014-11-25T03:52:33ZYou’ve seen it on TV – but what is the insanity defence?<figure><img src="https://images.theconversation.com/files/65319/original/image-20141124-19621-72ob50.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The insanity defence is often an option of last resort rather than a lenient alternative to imprisonment.</span> <span class="attribution"><span class="source">Douglas LeMoine</span></span></figcaption></figure><p>What comes to mind when you hear or read about the “insanity defence”? Are the mental images of people who fake insanity to “get away with murder”? Your ideas might have been formed by films such as <a href="http://www.imdb.com/title/tt0073486/?ref_=nv_sr_1">One Flew Over the Cuckoo’s Nest</a> (1975) or <a href="http://www.imdb.com/title/tt0113492/">Judge Dredd</a> (1995) or any number of episodes of crime procedurals such as <a href="http://www.imdb.com/title/tt0098844/">Law and Order</a>.</p>
<p>Contrary to popular belief and <a href="http://tvtropes.org/pmwiki/pmwiki.php/Main/InsanityDefense">depictions in popular culture</a>, the defence hardly offers lenient alternatives to imprisonment: it carries with it indefinite detention at secure psychiatric facilities and forensic patients may not be released even after their illness is managed for fear of potential dangerousness. </p>
<p>This is why it is almost exclusively raised in cases involving serious violence, such as murder. As Victorian judge Phillip Cummins <a href="https://theconversation.com/crazed-killer-headlines-defy-facts-of-crime-and-mental-impairment-30919">recently pointed out</a>, the defence is rarely employed and when it is, it is raised in only 1% of felony cases. </p>
<h2>How does it work and when is it successful?</h2>
<p>In order to find a defendant guilty of a crime, the prosecution must prove the act was committed voluntarily (physical element) and intentionally (mental element). If one of these elements is not satisfied beyond reasonable doubt, the accused is fully acquitted. Outside this framework, the law can exculpate people with mentally illness if they meet one of the criteria set out in the insanity defence. </p>
<p>These are: <br></p>
<blockquote>
<p>a) He or she did not know the consequences of the act <br>
b) He or she did not know the act was wrong <br>
c) He or she could not control the act<br></p>
</blockquote>
<p>The second prong of the defence tends to be more commonly used than the other two: that the defendant could not distinguish right from wrong. So under which circumstances may the defence be established? </p>
<p>Though a specific diagnosis is not required, <a href="https://www.academia.edu/3138628/Depression_and_legal_insanity._IJLP_37_2_">in practice</a> the defence is problematic for defendants who suffer from non-psychotic mental illnesses like depression. It is successful if defendants had a psychotic mental disorder. </p>
<p>A <a href="http://www.lawreform.vic.gov.au/sites/default/files/FinalReport.pdf">2003 report by the Victorian Law Reform Commission</a> shows that all of the cases in which the defence was successful involved offenders who had been psychotic at the time of the crime.</p>
<h2>Diagnostic label matters</h2>
<p>It is difficult to decide whether depression can impair one’s appreciation of the wrongness of an act such that it mitigates culpability. This can be due to a number of factors. </p>
<p>Psychiatric opinions on this matter are conflicting. If there is no consensus amongst expert witnesses in relation to whether depression can cause legal insanity, jury members may feel that definitive conclusions about this link cannot be made. </p>
<p>Further, the public’s familiarity with depression may influence courts’ and juries’ willingness to accept it as a sufficient basis for excusing culpability. Depression is perceived to be experienced by “anyone” and psychosocially induced rather than biologically.</p>
<p><a href="http://www.scopus.com/record/display.url?eid=2-s2.0-82255175163&origin=inward&txGid=D87F386AAA420C1A540D25CAC3AE0EFB.53bsOu7mi7A1NSY7fPJf1g%3a2">It is seen</a> as an aspect of the human condition. As such, sufferers are perceived to be well able to discern right from wrong and control their conduct.
Such perceptions and trivialisations may affect the way juries reach their verdict. </p>
<p>On the other hand, psychotic disorders characterised by delusions and hallucinations impair perceptions of reality and, as such, seem to be accepted as also impairing the ability to distinguish right from wrong. </p>
<p>In 2010, I <a href="https://www.academia.edu/3138628/Depression_and_legal_insanity._IJLP_37_2_">interviewed</a> Victoria’s Chief Crown Prosecutor Gavin Silbert and three defence lawyers about when the defence is employed successfully. Their views explain why depression may not qualify. Silbert observed:</p>
<blockquote>
<p>I’m not sure depression does qualify really because… you’ve got ordinary people sitting on a jury… and they’ve got a familiarity with depression. I mean psychosis and schizophrenia are a little bit more difficult to come to terms with unless they’ve had some involvement with it. You need a major psychosis. </p>
</blockquote>
<p>A lawyer noted:</p>
<blockquote>
<p>The usual ones would be paranoia, schizophrenia, dissociation.</p>
</blockquote>
<p>Defence counsel Patrick Tehan commented: </p>
<blockquote>
<p>There are particular psychiatric conditions which more readily lead to the conclusion the person is [legally insane]… the most obvious one is psychosis. Where the evidence is strong in relation to psychosis, that will readily lead to a [successful] defence. One of the difficult barriers is that of depression … [it] is not readily perceived as amounting to a mental illness sufficient to lead to a successful defence of [insanity]. </p>
</blockquote>
<p>Silbert added:</p>
<blockquote>
<p>A clearly diagnosed psychosis such as schizophrenia would clearly qualify.</p>
</blockquote>
<h2>The reality of the defence</h2>
<p>It is important to understand this defence is often an option of last resort rather than a lenient alternative to imprisonment. Depending on the case, a fixed term in prison may be in the offender’s best interest with the prospect of being released, rather than indefinite detention under the findings of the defence. </p>
<p>When it is raised in high profile cases such as <a href="http://www.theage.com.au/victoria/truly-appalling-killer-mum-donna-fitchett-jailed-for-murdering-sons-20100901-14md6.html">Donna Fitchett</a> or <a href="http://www.heraldsun.com.au/news/law-order/it-was-five-years-ago-when-darcey-freeman-4-was-thrown-from-the-west-gate-bridge/story-fni0ffnk-1226809665256">Arthur Freeman</a>, media narratives of outrage and sentiments of suspicion within the public follow because of the potential of “fabricating” insanity. </p>
<p>But the defence is very restrictive in who can employ it successfully and carries with it indefinite detention. Importantly, the legislative aim in utilising this defence is so that people who suffer from mental disorders and are legally insane can receive treatment.</p><img src="https://counter.theconversation.com/content/34292/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Meron Wondemaghen does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>What comes to mind when you hear or read about the “insanity defence”? Are the mental images of people who fake insanity to “get away with murder”? Your ideas might have been formed by films such as One…Meron Wondemaghen, Lecturer in Criminology, University of New EnglandLicensed as Creative Commons – attribution, no derivatives.