Criminal Responsibility in Canada: Mental Disorder Stigma Education and the Insanity Defense

2017 ◽  
Vol 16 (4) ◽  
pp. 313-335 ◽  
Author(s):  
Susan Yamamoto ◽  
Evelyn M. Maeder ◽  
Kristin L. Fenwick
Keyword(s):  
Mental Disorder ◽  
Criminal Responsibility ◽  
Insanity Defense

Insanity Defense Variations and Alternatives for Addressing the Criminal Responsibility of a Defendant with a Mental Disorder

2019 ◽  
pp. 237-268
Author(s):  
Thomas L. Hafemeister
Keyword(s):  
Mental Disorder ◽  
Criminal Responsibility ◽  
Burden Of Proof ◽  
Insanity Defense ◽  
Multiple Personality Disorder ◽  
Criminal Prosecution ◽  
Diminished Capacity ◽  
Actus Reus ◽  
Child Syndrome ◽  
Criminal Intent

Because of continuing reservations about the insanity defense but with the underlying consensus that a defendant’s mental disorder at the time of the offense should in some cases be relevant when determining criminal responsibility, various iterations of and alternatives to the insanity defense have been recognized. Chapter 9 addresses a number of these variations, such as the deific decree defense, the PTSD defense, the battered spouse/child syndrome defense, and the urban psychosis defense, as well as the abolition of the insanity defense or related mental health evidence, shifting the burden of proof to the defendant, heightening the level of proof required to establish the defense, the guilty but mentally ill verdict, the diminished capacity defense, and the so-called temporary or “he/she snapped” defense. This chapter also discusses other criminal responsibility issues that a defendant’s mental disorder may impact, namely, the mens rea (criminal intent) and actus reus (criminal act) elements of a criminal prosecution. For example, if a defendant lacked control over his or her actions, a crime is not considered to have occurred. Thus, the law recognizes an automatism or unconsciousness argument, which may encompass epilepsy, a concussion, or a fugue state. More controversial are the sleep-walking defense and the “multiple personality disorder” defense. This chapter also addresses the two USSC rulings germane to these various iterations and alternatives.

scholarly journals Between Punishment and Care: Autonomous Offenders Who Commit Crimes Under the Influence of Mental Disorder

2021 ◽  
Author(s):  
Thomas Hartvigsson
Keyword(s):  
Criminal Justice ◽  
Mental Disorders ◽  
Mental Disorder ◽  
Criminal Responsibility ◽  
Psychiatric Patients ◽  
Involuntary Treatment ◽  
Psychiatric Condition ◽  
Psychiatric Institutions

AbstractThe aim of this paper is to present a solution to a problem that arises from the fact that people who commit crimes under the influence of serious mental disorders may still have a capacity to refuse treatment. Several ethicists have argued that the present legislation concerning involuntary treatment of people with mental disorder is discriminatory and should change to the effect that psychiatric patients can refuse care on the same grounds as patients in somatic care. However, people with mental disorders who have committed crimes and been exempted from criminal responsibility would then fall outside the scope of criminal justice as well as that of the psychiatric institutions if they were to refuse care. In this paper, I present and develop a solution to how society should deal with this group of people, called Advance criminal responsibility. The basic idea being that if a person with a potentially responsibility exempting psychiatric condition refuses care, that person is responsible for any future criminal acts which are due to the mental disorder.

scholarly journals The offence/defence of infanticide: A view from two perspectives

2018 ◽  
Vol 82 (6) ◽  
pp. 470-481
Author(s):  
Helen Howard
Keyword(s):  
Mental Disorder ◽  
Postnatal Depression ◽  
Criminal Responsibility ◽  
Medical Condition ◽  
Moral Agent ◽  
Theoretical Rationale ◽  
After Effects ◽  
The Status ◽  
Not Criminally Responsible ◽  
Women Who Kill

This article asks whether the time is right for abolition of the offence/defence of infanticide. To this end, a two-pronged approach is taken, examining infanticide initially as an offence, and then as a defence. In terms of the offence of infanticide, consideration is given both to the concept of the ‘infanticidal mother’ and to the status of infants below the age of 12 months. When considering the defence of infanticide, examination is made of the exclusive nature of the defence and of the scope for an individual to be a ‘partial’ moral agent. The contradictory nature of infanticide, being both inculpatory and exculpatory, suggests the need for a theoretical rationale that justifies disallowing the offence/defence to, inter alia, those women who kill their own children over 12 months and to men who suffer similar ‘environmental’ postnatal depression. It is suggested that women who kill their children while suffering from the ‘after-effects’ of childbirth are either, depending on the severity of mental disorder, fully competent and therefore criminally responsible (although perhaps entitled to a lesser sentence due to a reduction in culpability) or fully incompetent, therefore incurring no criminal responsibility at all. This proposal can be achieved by recognising that there is a place for reduced culpability or a complete absence of responsibility to fall within the current defence of diminished responsibility or within the Law Commission’s recommended alternative to the insanity defence of ‘not criminally responsible by reason of recognised medical condition’.

scholarly journals After the age of criminal responsibility: a defence for children who offend

2016 ◽  
Vol 67 (3) ◽  
pp. 327-341
Author(s):  
Claire McDiarmid
Keyword(s):  
Young People ◽  
Mental Disorder ◽  
Lived Experience ◽  
Public Interest ◽  
Developmental Psychology ◽  
Criminal Responsibility ◽  
Mens Rea ◽  
Criminal Process ◽  
England And Wales ◽  
The Public

In Scotland, the age of criminal responsibility is 8, although children cannot be prosecuted until they are 12. In England and Wales, for all purposes, the age is 10. This article argues that a further mechanism is needed to protect the young who do wrong within the criminal process and it argues for a new, bespoke defence, to be available to young people from the age of criminal responsibility until they attain the age of 18. It looks firstly at criminal capacity – what it is that needs to be understood fairly to hold anyone criminally responsible – and draws on material from developmental psychology and neuro-science, as well as looking at the child’s lived experience, to provide some evidence that the young may, without fault, lack this capacity. It then examines the use of age generally in law, and the age of criminal responsibility within this. Next, it considers existing lack of capacity defences – nonage, diminished responsibility, insanity (or mental disorder) and absence of mens rea – to consider their suitability for use by young and immature defendants. Finally, it presents a proposal for the form of the new defence, taking into account the need for balance with the public interest in conviction of the guilty. Throughout, it notes and analyses the Law Commission’s proposals in this respect.

Personality, belief in a just world, and attitudes toward criminal responsibility defenses: a preliminary study

2019 ◽  
Vol 5 (1) ◽  
pp. 1-12
Author(s):  
Robyn Mooney
Keyword(s):  
Mental Illness ◽  
Mental Disorder ◽  
Undergraduate Students ◽  
Criminal Responsibility ◽  
Business Students ◽  
Social Dominance Orientation ◽  
Dark Triad ◽  
Just World ◽  
Voir Dire ◽  
Content Type

Purpose In Canada, if it can be proven that a defendant was suffering from a mental disorder at the time they committed an offense, they can be found Not Criminally Responsible on Account of Mental Disorder (NCRMD). These cases are often decided by jury. The purpose of this paper is to examine the influence of the dark triad (DT), social dominance orientation (SDO) and belief in a just world (BJW) on undergraduate students’ attitudes toward the NCRMD defense. Design/methodology/approach A total of 421 undergraduate students completed questionnaires measuring SDO and the DT. After being primed for high, low or neutral BJW, they indicated their attitudes toward NCRMD. Findings The BJW manipulation had no effect on attitudes. High-SDO/DT participants held less favorable attitudes toward NCRMD than participants who scored low on these variables, F(1, 420)=20.65, p<0.01, η p 2 = 0.05 . Psychology and criminology students had significantly more favorable attitudes toward NCRMD than business students. Practical implications This study can be helpful in improving jury impartiality in trials involving mental illness and criminal responsibility; assessment of SDO and the DT; awareness of career roles relating to insanity defense bias; and improving the voir dire process. Originality/value The results of this study may be used to improve the voir dire process in trials involving the issue of mental illness and criminal responsibility and to preserve the impartiality of the jurors selected for these trials.

Neuroscience-based Psychiatric Assessments of Criminal Responsibility: Beyond Self-Report?

2020 ◽  
Vol 29 (3) ◽  
pp. 446-458
Author(s):  
GERBEN MEYNEN
Keyword(s):  
Psychiatric Disorders ◽  
Forensic Psychiatry ◽  
Criminal Responsibility ◽  
Insanity Defense ◽  
Considerable Extent ◽  
Self Report ◽  
Legal Systems ◽  
Mind Reading ◽  
Neurological Illnesses ◽  
Current Value

AbstractMany legal systems have an insanity defense, which means that although a person has committed a crime, she is not held criminally responsible for the act. A challenge with regard to these assessments is that forensic psychiatrists have to rely to a considerable extent on the defendant's self-report. Could neuroscience be a way to make these evaluations more objective? The current value of neuroimaging in insanity assessments will be examined. The author argues that neuroscience can be valuable for diagnosing neurological illnesses, rather than psychiatric disorders. Next, he discusses to what extent neurotechnological 'mind reading' techniques, if they would become available in the future, could be useful to get beyond self-report in forensic psychiatry.

The notion of ‘a person of unsound mind’ under Article 5 § 1(e) of the European Convention on Human Rights

2020 ◽  
Vol 38 (4) ◽  
pp. 283-301
Author(s):  
Marcin Szwed
Keyword(s):  
Mental Disorders ◽  
Mental Disorder ◽  
Criminal Responsibility ◽  
Case Law ◽  
Self Control ◽  
European Convention ◽  
Personal Liberty ◽  
The Past ◽  
Definition Of ◽  
Article 5

This article presents a critical analysis of the case-law of the ECtHR with regards to the interpretation of the notion of ‘a person of unsound mind’ under Article 5 § 1(e) of the Convention. According to the Court, only a person who has been reliably diagnosed with a mental disorder and who poses a danger to himself or others can be legally detained as ‘a person of unsound mind’. However, the notion of ‘unsoundness of mind’ is not limited to such mental disorders which are treatable or which deprive the persons affected of their ability to self-control and so in the past the Court applied the said provision of the Convention to, among others, persons diagnosed with personality disorders or paedophilia who commited crimes acting with full criminal responsibility. The article argues that such a definition of the notion ‘a person of unsound mind’ is not sufficiently clear, what is dangerous from the perspective of protection of personal liberty. For this reason, the article proposes to limit the scope of the analysed notion to persons affected by such mental disorders that exclude or significantly reduce their ability to make informed decisions about their own health and/or to control their own behaviour and recognise the meaning of their own actions. Only then, provided that other criteria developed in the Court’s case law, such as dangerousness for self or others and lack of less restrictive alternatives, have been satisfied, detention of person with mental disorder may be consistent with the object and purpose of the Convention.

scholarly journals Closing forensic psychiatric hospitals in Italy: a new revolution begins?

2015 ◽  
Vol 206 (6) ◽  
pp. 445-446 ◽  
Author(s):  
Corrado Barbui ◽  
Benedetto Saraceno
Keyword(s):  
Mental Disorder ◽  
Public Safety ◽  
Criminal Responsibility ◽  
Psychiatric Hospitals ◽  
Criminal Offence ◽  
Forensic Psychiatric ◽  
Key Aspects

SummaryOn 30 May 2014 the Italian Parliament approved a new law regarding forensic psychiatric hospitals. Forensic psychiatric hospitals are facilities that admit individuals who have committed a criminal offence but lack criminal responsibility because of a mental disorder and are deemed as dangerous to public safety. Here we report the key aspects of the new legislation together with some critical considerations.

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