Rethinking criminal responsibility from a critical disability perspective: The abolition of insanity/incapacity acquittals and unfitness to plead, and beyond

Abstract

Viewed from a critical disability perspective, criminal responsibility requires both formal and substantive equality. This article examines criminal responsibility using provisions of the Convention on the Rights on Persons with Disabilities (CRPD) on equal recognition before the law, access to justice, liberty and security of the person, and equality and non-discrimination. In light of the CRPD, declarations of unfitness to plead, the negation of criminal responsibility based on disability or alleged incapacity, as well as commitment to psychiatric institutions in either a civil or criminal context, are discriminatory measures contrary to the rights of persons with disabilities, and must be abolished. Beyond abolition, which will achieve formal equality, this article proposes an inclusively designed framework that may meet the need for substantive equality between persons with disabilities and others in the adjudication of criminal responsibility.

Notes

¹ Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 2515 UNTS 3 (entered into force 3 May 2008).

² Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 2515 UNTS 3 (entered into force 3 May 2008) art 5.1.

³ Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 2515 UNTS 3 (entered into force 3 May 2008) art 12.2.

⁴ Committee on the Rights of Persons with Disabilities, General Comment No 1: Article 12: Equal recognition before the law, 11^th sess, UN Doc CRPD/C/GC/1 (11 April 2014).

⁵ Standard Minimum Rules for the Treatment of Prisoners, adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, UN Doc A/CONF/6/C.1/L.1 (30 August 1955), ESC res 663C, 24^th sess, UN ESCOR Supp No 1, UN Doc E/3048 (31 July 1957), amended ESC res 2076, 62^nd sess, UN ESCOR Supp No 1, UN Doc E/5988 (13 May 1977).

⁶ See Committee on the Rights of Persons with Disabilities, Observations on the Standard Minimum Rules on the Rights of Persons with Disabilities, UN Doc UNODC/CCPCJ/EG.6/2014/INF/4 (29 November 2013); Juan E Méndez, Interim Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, UN Doc A/68/295 (9 August 2013); World Network of Users and Survivors of Psychiatry (2011).

⁷ CRPD arts 2, 3(c), (d) and (e), 4.1 entire and especially (f), 4.3, 5, 12.1, 12.2, 19.

⁸ Cf. Morse and Hoffman (2008).

⁹ See, e.g., Quinn with Arnstein-Kerslake (2013).

¹⁰ Minkowitz (2014b).

¹¹ See Morse and Hoffman (2008).

¹² Pranis (2003).

¹³ As an example of the therapeutic jurisprudence approach, see Perlin (date unknown).

¹⁴ Personal communication with NY Mental Hygiene Legal Service Attorney Kim Darrow circa 2002.

¹⁵ See Manfred Nowak, Interim report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, UN Doc A/63/175 (28 July 2008) para 49; Juan E Méndez, Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, UN Doc A/HRC/22/53 (1 February 2013) paras 22, 31–35.

¹⁶ Slobogin (2000).

¹⁷ See Loewy (2009).

¹⁸ American Law Institute, Model Penal Code and Commentaries (Official Draft and Revised Comments) (1962) arts 2 and 3.

¹⁹ Slobogin (2010).

²⁰ Slobogin (2010).

²¹ Nourse (2003).

²² See for example IDA CRPD Forum, ‘Principles for the Implementation of CRPD Article 12,’ <http://www.internationaldisabilityalliance.org/en/ida-position-papers-and-statements>, and Minkowitz (2006).

²³ Stuntz (2008).

²⁴ Manfred Nowak, Interim report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, UN Doc A/63/175 (28 July 2008) para 44.

²⁵ Minkowitz (2012a).

²⁶ Committee on the Rights of Persons with Disabilities, General Comment No 1: Article 12: Equal recognition before the law, 11^th sess, UN Doc CRPD/C/GC/1 (11 April 2014) para 12.

²⁷ Committee on the Rights of Persons with Disabilities, General Comment No 1: Article 12: Equal recognition before the law, 11^th sess, UN Doc CRPD/C/GC/1 (11 April 2014) paras 7, 8, 31, 40–42; Committee on the Rights of Persons with Disabilities, Concluding Observations on Belgium, 12^th sess, UN Doc CRPD/C/BEL/CO/1 (3 October 2014) paras 25–26; Committee on the Rights of Persons with Disabilities, Concluding Observations on Denmark, 12^th sess, UN Doc CRPD/C/DNK/CO/1 (3 October 2014) paras 36–39; Committee on the Rights of Persons with Disabilities, Concluding Observations on Ecuador, 12^th sess, UN Doc CRPD/C/ECU/CO/1 (3 October 2014) paras 28, 29(a), (c) and (d); Committee on the Rights of Persons with Disabilities, Concluding Observations on Korea, 12^th sess, UN Doc CRPD/C/KOR/CO/1 (3 October 2014) paras 25–26, 29–30; Committee on the Rights of Persons with Disabilities, Concluding Observations on Mexico, 12^th sess, UN Doc CRPD/C/MEX/CO/1 (3 October 2014) paras 29–30; Committee on the Rights of Persons with Disabilities, Concluding Observations on New Zealand, 12^th sess, UN Doc CRPD/C/NZL/CO/1 (3 October 2014) paras 29–30; Committee on the Rights of Persons with Disabilities, Concluding Observations on Azerbaijan, 11^th sess, UN Doc CRPD/C/AZE/CO/1 (11 April 2014) paras 28–29; Committee on the Rights of Persons with Disabilities, Concluding Observations on Costa Rica, 11^th sess, UN Doc CRPD/C/CRI/CO/1 (12 May 2014) paras 33–34; Committee on the Rights of Persons with Disabilities, Concluding Observations on Sweden, 11^th sess, UN Doc CRPD/C/SWE/CO/1 (11 April 2014) paras 35–40; Committee on the Rights of Persons with Disabilities, Concluding Observations on Australia, 10^th sess, UN Doc CRPD/C/AUS/CO/1 (4 October 2013) paras 34–36; Committee on the Rights of Persons with Disabilities, Concluding Observations on Austria, 10^th sess, UN Doc CRPD/C/AUT/CO/1 (13 September 2013) paras 29–33; Committee on the Rights of Persons with Disabilities, Concluding Observations on El Salvador, 10^th sess, UN Doc CRPD/C/SLV/CO/1 (13 September 2013) paras 32–33; Concluding Observations on Argentina, 8^th sess, UN Doc CRPD/C/ARG/CO/1 (27 September 2012) paras 41–42; Committee on the Rights of Persons with Disabilities, Concluding Observations on China, 8^th sess, UN Doc CRPD/C/CHN/CO/1 (27 September 2012) para 26, 28; Committee on the Rights of Persons with Disabilities, Concluding Observations on Hungary, 8^th sess, UN Doc CRPD/C/HUN/CO/1 (27 September 2012) para 28 Committee on the Rights of Persons with Disabilities, Concluding Observations on Peru, 7^th sess, UN Doc CRPD/C/PER/CO/1 (9 May 2012) paras 29–31; Committee on the Rights of Persons with Disabilities, Concluding observations on Spain, 6^th sess, UN Doc CRPD/C/ESP/CO/1 (2011) para 36; Concluding Observations on Tunisia, 5^th sess, UN Doc CRPD/C/TUN/CO/1 (29 April 2011) paras 28–29. See Minkowitz (2014a) for an analysis of this jurisprudence through April 2014.

On the characterisation of forced psychiatric interventions as a form of torture and ill-treatment, see also Manfred Nowak, Interim report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, UN Doc A/63/175 (28 July 2008); Juan E Méndez, Interim Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, UN Doc A/68/295 (9 August 2013); Minkowitz (2007).

²⁸ Manfred Nowak, Interim report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, UN Doc A/63/175 (28 July 2008) paras 44, 47, 50; Office of the High Commissioner for Human Rights, Thematic Study on enhancing awareness and understanding of the Convention on the Rights of Persons with Disabilities, UN Doc A/HRC/10/48 (26 January 2009) paras 43–46; Committee for the Elimination of All Forms of Discrimination Against Persons with Disabilities, General Observation of the Committee for the Elimination of All Forms of Discrimination against Persons with Disabilities on the need to interpret Article I.2(b) in fine of the Inter-American Convention on the Elimination of All Forms of Discrimination against Persons with Disabilities in the context of Article 12 of the United Nations Convention on the Rights of Persons with Disabilities, OEA/Ser.L/XXIV.3.1, CEDDIS/doc.12(I-E/11) rev.1 (28 April 2011); Santos Cifuentes et al (2008), IDA CRPD Forum (2008a).

²⁹ Concluding Observations under Article 12 prior to the General Comment: Committee on the Rights of Persons with Disabilities, Concluding Observations on Australia, 10^th sess, UN Doc CRPD/C/AUS/CO/1 (4 October 2013) paras 24–25; Committee on the Rights of Persons with Disabilities, Concluding Observations on Austria, 10^th sess, UN Doc CRPD/C/AUT/CO/1 (13 September 2013) paras 27–28; Committee on the Rights of Persons with Disabilities, Concluding Observations on El Salvador, 10^th sess, UN Doc CRPD/C/SLV/CO/1 (13 September 2013) paras 27–28; Committee on the Rights of Persons with Disabilities, Concluding Observations on Paraguay, 9^th sess, UN Doc CRPD/C/PRY/CO/1 (15 May 2013) paras 29–30; Committee on the Rights of Persons with Disabilities, Concluding Observations on Argentina, 8^th sess, UN Doc CRPD/C/ARG/CO/1 (27 September 2012) paras 19–22; Committee on the Rights of Persons with Disabilities, Concluding Observations on China, 8^th sess, UN Doc CRPD/C/CHN/CO/1 (27 September 2012) paras 21–22; Committee on the Rights of Persons with Disabilities, Concluding Observations on Hungary, 8^th sess, UN Doc CRPD/C/HUN/CO/1 (27 September 2012) paras 25–26; Committee on the Rights of Persons with Disabilities, Concluding Observations on Peru, 7^th sess, UN Doc CRPD/C/PER/CO/1 (9 May 2012) paras 24–27; Committee on the Rights of Persons with Disabilities, Concluding observations on Spain, 6^th sess, UN Doc CRPD/C/ESP/CO/1 (2011) paras 33–34; Committee on the Rights of Persons with Disabilities, Concluding Observations on Tunisia, 5^th sess, UN Doc CRPD/C/TUN/CO/1 (29 April 2011) paras 22–23. After the General Comment: Committee on the Rights of Persons with Disabilities, Concluding Observations on Belgium, 12^th sess, UN Doc CRPD/C/BEL/CO/1 (3 October 2014) paras 23–24; Committee on the Rights of Persons with Disabilities, Concluding Observations on Denmark, 12^th sess, UN Doc CRPD/C/DNK/CO/1 (3 October 2014) paras 32–33; Committee on the Rights of Persons with Disabilities, Concluding Observations on Ecuador, 12^th sess, UN Doc CRPD/C/ECU/CO/1 (3 October 2014) paras 24–25; Committee on the Rights of Persons with Disabilities, Concluding Observations on Korea, 12^th sess, UN Doc CRPD/C/KOR/CO/1 (3 October 2014) paras 21–22; Committee on the Rights of Persons with Disabilities, Concluding Observations on Mexico, 12^th sess, UN Doc CRPD/C/MEX/CO/1 (3 October 2014) paras 23–24; Committee on the Rights of Persons with Disabilities, Concluding Observations on New Zealand, 12^th sess, UN Doc CRPD/C/NZL/CO/1 (3 October 2014) paras 21–22; Committee on the Rights of Persons with Disabilities, Concluding Observations on Azerbaijan, 11^th sess, UN Doc CRPD/C/AZE/CO/1 (11 April 2014) paras 26–27; Committee on the Rights of Persons with Disabilities, Concluding Observations on Costa Rica, 11^th sess, UN Doc CRPD/C/CRI/CO/1 (12 May 2014) paras 21–22; Committee on the Rights of Persons with Disabilities, Concluding Observations on Sweden, 11^th sess, UN Doc CRPD/C/SWE/CO/1 (11 April 2014) paras 33–34.

³⁰ Committee on the Rights of Persons with Disabilities, General Comment No 1: Article 12: Equal recognition before the law, 11^th sess, UN Doc CRPD/C/GC/1 (11 April 2014) paras 8, 25.

³¹ Committee on the Rights of Persons with Disabilities, General Comment No 1: Article 12: Equal recognition before the law, 11^th sess, UN Doc CRPD/C/GC/1 (11 April 2014) paras 13–15.

³² Committee on the Rights of Persons with Disabilities, General Comment No 1: Article 12: Equal recognition before the law, 11^th sess, UN Doc CRPD/C/GC/1 (11 April 2014) para 18.

³³ Committee on the Rights of Persons with Disabilities, General Comment No 1: Article 12: Equal recognition before the law, 11^th sess, UN Doc CRPD/C/GC/1 (11 April 2014) paras 13–15, 17, 29(i).

³⁴ Committee on the Rights of Persons with Disabilities, General Comment No 1: Article 12: Equal recognition before the law, 11^th sess, UN Doc CRPD/C/GC/1 (11 April 2014) paras 7, 17, 26, 28, 29, 31, 40, 42.

³⁵ Committee on the Rights of Persons with Disabilities, General Comment No 1: Article 12: Equal recognition before the law, 11^th sess, UN Doc CRPD/C/GC/1 (11 April 2014) para 38.

³⁶ Compare Convention on the Elimination of All Forms of Discrimination Against Women, opened for signature 1 March 1980, 1249 UNTS 13 (entered into force 3 September 1981) art 15.

³⁷ Office of the High Commissioner for Human Rights, Thematic Study on enhancing awareness and understanding of the Convention on the Rights of Persons with Disabilities, UN Doc A/HRC/10/48 (26 January 2009) para 47.

³⁸ IDA CRPD Forum (2008a) and (2008b); WNUSP (2011); Hazen and Minkowitz (2012).

³⁹ Committee on the Rights of Persons with Disabilities, General Comment No 1: Article 12: Equal recognition before the law, 11^th sess, UN Doc CRPD/C/GC/1 (11 April 2014) paras 13–15, 17, 29(i).

⁴⁰ See Committee on the Rights of Persons with Disabilities, General Comment No 1: Article 12: Equal recognition before the law, 11^th sess, UN Doc CRPD/C/GC/1 (11 April 2014) para 15.

⁴¹ Committee on the Rights of Persons with Disabilities, General Comment No 1: Article 12: Equal recognition before the law, 11^th sess, UN Doc CRPD/C/GC/1 (11 April 2014) para 19.

⁴² See Office of the High Commissioner for Human Rights, Thematic Study on enhancing awareness and understanding of the Convention on the Rights of Persons with Disabilities, UN Doc A/HRC/10/48 (26 January 2009), World Network of Users and Survivors of Psychiatry (2011) and Hazen and Minkowitz (2012).

⁴³ Committee on the Rights of Persons with Disabilities, General Comment No 1: Article 12: Equal recognition before the law, 11^th sess, UN Doc CRPD/C/GC/1 (11 April 2014) paras 38–39; Committee on the Rights of Persons with Disabilities, Concluding Observations on Korea, 12^th sess, UN Doc CRPD/C/KOR/CO/1 (3 October 2014) para 28; Committee on the Rights of Persons with Disabilities, Concluding Observations on Belgium, 12^th sess, UN Doc CRPD/C/BEL/CO/1 (3 October 2014) paras 27–28; Committee on the Rights of Persons with Disabilities, Concluding Observations on Denmark, 12^th sess, UN Doc CRPD/C/DNK/CO/1 (3 October 2014) paras 34–35; Committee on the Rights of Persons with Disabilities, Concluding Observations on Mexico, 12^th sess, UN Doc CRPD/C/MEX/CO/1 (3 October 2014) paras 27–28; Committee on the Rights of Persons with Disabilities, Concluding Observations on New Zealand, 12^th sess, UN Doc CRPD/C/NZL/CO/1 (3 October 2014) paras 33–34; Committee on the Rights of Persons with Disabilities, Concluding Observations on Costa Rica, 11^th sess, UN Doc CRPD/C/CRI/CO/1 (12 May 2014) paras 27–28; Committee on the Rights of Persons with Disabilities, Concluding Observations on Australia, 10^th sess, UN Doc CRPD/C/AUS/CO/1 (4 October 2013) para 30. For details of CRPD Article 14.2, see below in discussion of liberty and security of the person.

⁴⁴ Committee on the Rights of Persons with Disabilities, Concluding Observations on Belgium, 12^th sess, UN Doc CRPD/C/BEL/CO/1 (3 October 2014) paras 27–28.

⁴⁵ Committee on the Rights of Persons with Disabilities, Concluding Observations on Ecuador, 12^th sess, UN Doc CRPD/C/ECU/CO/1 (3 October 2014) paras 28, 29(b); Committee on the Rights of Persons with Disabilities, Concluding Observations on Mexico, 12^th sess, UN Doc CRPD/C/MEX/CO/1 (3 October 2014) paras 27–28.

⁴⁶ Committee on the Rights of Persons with Disabilities, Concluding Observations on Belgium, 12^th sess, UN Doc CRPD/C/BEL/CO/1 (3 October 2014) paras 27–28.

⁴⁷ Committee on the Rights of Persons with Disabilities, Concluding Observations on Denmark, 12^th sess, UN Doc CRPD/C/DNK/CO/1 (3 October 2014) paras 34–35.

⁴⁸ See discussion above on the debate about criminal responsibility. In General Comment No. 1, paragraph 15, the CRPD Committee explained why the functional approach to deprivation of legal capacity, equally with status-based and outcome-based approaches, is contrary to Article 12:

The functional approach attempts to assess mental capacity and deny legal capacity accordingly. It is often based on whether a person can understand the nature and consequences of a decision and/or whether he or she can use or weigh the relevant information. This approach is flawed for two key

reasons: (a) it is discriminatorily applied to people with disabilities; and (b) it presumes to be able to accurately assess the inner-workings of the human mind and, when the person does not pass the assessment, it then denies him or her a core human right — the right to equal recognition before the law.

⁴⁹ Committee on the Rights of Persons with Disabilities, Concluding Observations on Belgium, 12^th sess, UN Doc CRPD/C/BEL/CO/1 (3 October 2014) para 29; Committee on the Rights of Persons with Disabilities, Concluding Observations on Australia, 10^th sess, UN Doc CRPD/C/AUS/CO/1 (4 October 2013) para 29.

⁵⁰ Committee on the Rights of Persons with Disabilities, General Comment No 1: Article 12: Equal recognition before the law, 11^th sess, UN Doc CRPD/C/GC/1 (11 April 2014) paras 31, 40; Committee on the Rights of Persons with Disabilities, Concluding Observations on Belgium, 12^th sess, UN Doc CRPD/C/BEL/CO/1 (3 October 2014) paras 25–26; Committee on the Rights of Persons with Disabilities, Concluding Observations on Denmark, 12^th sess, UN Doc CRPD/C/DNK/CO/1 (3 October 2014) paras 36–37; Committee on the Rights of Persons with Disabilities, Concluding Observations on Ecuador, 12^th sess, UN Doc CRPD/C/ECU/CO/1 (3 October 2014) paras 28, 29(a), (c) and (d); Committee on the Rights of Persons with Disabilities, Concluding Observations on Korea, 12^th sess, UN Doc CRPD/C/KOR/CO/1 (3 October 2014) paras 25–26; Committee on the Rights of Persons with Disabilities, Concluding Observations on Mexico, 12^th sess, UN Doc CRPD/C/MEX/CO/1 (3 October 2014) paras 29–30; Committee on the Rights of Persons with Disabilities, Concluding Observations on New Zealand, 12^th sess, UN Doc CRPD/C/NZL/CO/1 (3 October 2014) paras 29–30; Committee on the Rights of Persons with Disabilities, Concluding Observations on Azerbaijan, 11^th sess, UN Doc CRPD/C/AZE/CO/1 (11 April 2014) paras 28–29; Committee on the Rights of Persons with Disabilities, Concluding Observations on Sweden, 11^th sess, UN Doc CRPD/C/SWE/CO/1 (11 April 2014) paras 35–36; Committee on the Rights of Persons with Disabilities, Concluding Observations on Australia, 10^th sess, UN Doc CRPD/C/AUS/CO/1 (4 October 2013) para 34; Committee on the Rights of Persons with Disabilities, Concluding Observations on Austria, 10^th sess, UN Doc CRPD/C/AUT/CO/1 (13 September 2013) paras 29–30; Committee on the Rights of Persons with Disabilities, Concluding Observations on El Salvador, 10^th sess, UN Doc CRPD/C/SLV/CO/1 (13 September 2013) para 32; Committee on the Rights of Persons with Disabilities, Concluding Observations on Paraguay, 9^th sess, UN Doc CRPD/C/PRY/CO/1 (15 May 2013) paras 35–36; Committee on the Rights of Persons with Disabilities, Concluding Observations on China, 8^th sess, UN Doc CRPD/C/CHN/CO/1 (27 September 2012) para 26; Committee on the Rights of Persons with Disabilities, Concluding Observations on Hungary, 8^th sess, UN Doc CRPD/C/HUN/CO/1 (27 September 2012) para 28; Committee on the Rights of Persons with Disabilities, Concluding Observations on Peru, 7^th sess, UN Doc CRPD/C/PER/CO/1 (9 May 2012) para 29; Committee on the Rights of Persons with Disabilities, Concluding observations on Spain, 6^th sess, UN Doc CRPD/C/ESP/CO/1 (2011) para 36; Committee on the Rights of Persons with Disabilities, Concluding Observations on Tunisia, 5^th sess, UN Doc CRPD/C/TUN/CO/1 (29 April 2011) para 25; Committee on the Rights of Persons with Disabilities, Statement on article 14 of the Convention on the Rights of Persons with Disabilities, 12^th sess (September 2014) <http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=15183&LangID=E>.

⁵¹ Committee on the Rights of Persons with Disabilities, General Comment No 1: Article 12: Equal recognition before the law, 11^th sess, UN Doc CRPD/C/GC/1 (11 April 2014) para 40.

⁵² CRPD Article 2 defines disability-based discrimination to include the denial of reasonable accommodation, among other forms of discrimination; Article 2 also contains a definition of reasonable accommodation. Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 2515 UNTS 3 (entered into force 3 May 2008) art 2.

⁵³ See further discussion below under the heading of equality and non-discrimination.

⁵⁴ See Chair’s concluding remarks in discussion of Article 14.1(b) in UN Convention on the Rights of People with Disabilities Ad Hoc Committee – Daily Summaries 8(4) (19 January 2006) <http://www.un.org/esa/socdev/enable/rights/ahc7sum19jan.htm>.

⁵⁵ Committee on the Rights of Persons with Disabilities, Concluding Observations on Austria, 10^th sess, UN Doc CRPD/C/AUT/CO/1 (13 September 2013) para 30.

⁵⁶ Mental health commitment and compulsory treatment pursuant to diversion from criminal proceedings is also prohibited under Article 13. Committee on the Rights of Persons with Disabilities, Concluding Observations on Australia, 10^th sess, UN Doc CRPD/C/AUS/CO/1 (4 October 2013) para 29.

⁵⁷ Committee on the Rights of Persons with Disabilities, Concluding Observations on Ecuador, 12^th sess, UN Doc CRPD/C/ECU/CO/1 (3 October 2014) para 29(d); Committee on the Rights of Persons with Disabilities, Concluding Observations on Korea, 12^th sess, UN Doc CRPD/C/KOR/CO/1 (3 October 2014) para 26; Committee on the Rights of Persons with Disabilities, Concluding Observations on Mexico, 12^th sess, UN Doc CRPD/C/MEX/CO/1 (3 October 2014) para 30(b); Committee on the Rights of Persons with Disabilities, Concluding Observations on New Zealand, 12^th sess, UN Doc CRPD/C/NZL/CO/1 (3 October 2014) para 30; Committee on the Rights of Persons with Disabilities, Concluding Observations on Sweden, 11^th sess, UN Doc CRPD/C/SWE/CO/1 (11 April 2014) para 36; Committee on the Rights of Persons with Disabilities, Concluding Observations on Australia, 10^th sess, UN Doc CRPD/C/AUS/CO/1 (4 October 2013) para 34; Committee on the Rights of Persons with Disabilities, Concluding Observations on Austria, 10^th sess, UN Doc CRPD/C/AUT/CO/1 (13 September 2013) para 31; Committee on the Rights of Persons with Disabilities, Concluding Observations on El Salvador, 10^th sess, UN Doc CRPD/C/SLV/CO/1 (13 September 2013) para 32; Committee on the Rights of Persons with Disabilities, Concluding Observations on Paraguay, 9^th sess, UN Doc CRPD/C/PRY/CO/1 (15 May 2013) paras 35–36; Committee on the Rights of Persons with Disabilities, Concluding Observations on Hungary, 8^th sess, UN Doc CRPD/C/HUN/CO/1 (27 September 2012) para 28; Committee on the Rights of Persons with Disabilities, Concluding observations on Spain, 6^th sess, UN Doc CRPD/C/ESP/CO/1 (2011) para 36.

⁵⁸ Committee on the Rights of Persons with Disabilities, General Comment No 1: Article 12: Equal recognition before the law, 11^th sess, UN Doc CRPD/C/GC/1 (11 April 2014) paras 7, 8, 31, 40–42. Under Article 15: Committee on the Rights of Persons with Disabilities, Concluding Observations on Denmark, 12^th sess, UN Doc CRPD/C/DNK/CO/1 (3 October 2014) paras 38–39; Committee on the Rights of Persons with Disabilities, Concluding Observations on Korea, 12^th sess, UN Doc CRPD/C/KOR/CO/1 (3 October 2014) paras 29–30; Committee on the Rights of Persons with Disabilities, Concluding Observations on Azerbaijan, 11^th sess, UN Doc CRPD/C/AZE/CO/1 (11 April 2014) paras 28–29; Committee on the Rights of Persons with Disabilities, Concluding Observations on Costa Rica, 11^th sess, UN Doc CRPD/C/CRI/CO/1 (12 May 2014) paras 33–34; Committee on the Rights of Persons with Disabilities, Concluding Observations on Sweden, 11^th sess, UN Doc CRPD/C/SWE/CO/1 (11 April 2014) paras 37–40; Committee on the Rights of Persons with Disabilities, Concluding Observations on Australia, 10^th sess, UN Doc CRPD/C/AUS/CO/1 (4 October 2013) paras 35–36; Committee on the Rights of Persons with Disabilities, Concluding Observations on Austria, 10^th sess, UN Doc CRPD/C/AUT/CO/1 (13 September 2013) paras 32–33; Committee on the Rights of Persons with Disabilities, Concluding Observations on El Salvador, 10^th sess, UN Doc CRPD/C/SLV/CO/1 (13 September 2013) para 33; Committee on the Rights of Persons with Disabilities, Concluding Observations on Peru, 7^th sess, UN Doc CRPD/C/PER/CO/1 (9 May 2012) paras 30–31. Under Article 17: Committee on the Rights of Persons with Disabilities, Concluding Observations on Tunisia, 5^th sess, UN Doc CRPD/C/TUN/CO/1 (29 April 2011) paras 28–29. Under Article 25: Committee on the Rights of Persons with Disabilities, Concluding Observations on China, 8^th sess, UN Doc CRPD/C/CHN/CO/1 (27 September 2012) para 38; Committee on the Rights of Persons with Disabilities, Concluding Observations on Argentina, 8^th sess, UN Doc CRPD/C/ARG/CO/1 (27 September 2012) paras 41–42.

⁵⁹ Juan E Méndez, Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, UN Doc A/HRC/22/53 (1 February 2013) paras 85(e) and 89(b); Manfred Nowak, Interim report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, UN Doc A/63/175 (28 July 2008) paras 44, 47, 61–65; see also Minkowitz (2007) and Minkowitz (2014c).

⁶⁰ Committee on the Rights of Persons with Disabilities, Concluding Observations on Belgium, 12^th sess, UN Doc CRPD/C/BEL/CO/1 (3 October 2014) para 29.

⁶¹ Committee on the Rights of Persons with Disabilities, General Comment No 1: Article 12: Equal recognition before the law, 11^th sess, UN Doc CRPD/C/GC/1 (11 April 2014) para 42; Committee on the Rights of Persons with Disabilities, Concluding Observations on China, 8^th sess, UN Doc CRPD/C/CHN/CO/1 (27 September 2012) para 38.

⁶² Committee on the Rights of Persons with Disabilities, Observations on the Standard Minimum Rules on the Rights of Persons with Disabilities, UN Doc UNODC/CCPCJ/EG.6/2014/INF/4 (29 November 2013); World Network of Users and Survivors of Psychiatry (2011).

⁶³ Juan E Méndez, Interim Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, UN Doc A/68/295 (9 August 2013) para 72.

⁶⁴ Juan E Méndez, Interim Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, UN Doc A/68/295 (9 August 2013) paras 54 and 58, respectively.

⁶⁵ Juan E Méndez, Interim Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, UN Doc A/68/295 (9 August 2013) para 39.

⁶⁶ Juan E Méndez, Interim Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, UN Doc A/68/295 (9 August 2013) para 40.

⁶⁷ Equality-based framework: Minkowitz (2010); Minkowitz (2012b). CRPD on inclusive design: Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 2515 UNTS 3 (entered into force 3 May 2008) arts 2, 4.1(f), referring to “universal design” which is an alternate term with the same meaning.

⁶⁸ Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 2515 UNTS 3 (entered into force 3 May 2008) art 5.1.

⁶⁹ Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 2515 UNTS 3 (entered into force 3 May 2008) arts 5.2 and 5.3.

⁷⁰ Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 2515 UNTS 3 (entered into force 3 May 2008) art 5.4.

⁷¹ Committee on the Rights of Persons with Disabilities, Concluding observations on Spain, 6^th sess, UN Doc CRPD/C/ESP/CO/1 (2011) paras 17–18, condemning the application of more lenient standards for termination of pregnancy based on prospective disability of the fetus.

⁷² Beaupert and Steele (2014).

⁷³ This proposal has benefited from discussion with Alberto Vasquez, Chris Hansen, Myra Kovary, Mari Yamamoto, Sarah Knutson and Bhargavi Davar.

⁷⁴ One possible approach is to consider to the benefit of the defendant the question, ‘What factors may have impacted on the person’s decision-making at the time the offense was committed?’

I have gone back and forth between a general framing of subjectivised mens rea as in the main text, and a more explicit invocation of decision-making diversity as presented in this footnote, and have not been able to completely reconcile them. I offer both here for a complete exposition so that readers can struggle with the same questions.

Framing the inquiry in terms of impact on decision-making acknowledges that we are all dealing with environmental stressors, major life crises, passing emotions, and similar factors throughout our lives, and that such factors, irrespective of the person’s manner of expression or level of distress, should be considered in a sympathetic light to promote some margin of tolerance for rule-breaking behaviour up to a point that can only be determined in practice by the relevant community. (That determination could be guided by an analogue of the criterion for reasonable accommodation, that a margin of tolerance should not constitute a fundamental alteration of essential aspects of legitimate aims attached to the criminalisation of certain conduct, and it should not impose an undue burden on other members of society.)

There is a disadvantage, however, in that it may encourage us to objectify the person and speculate about his or her decision-making, giving rise to the very prejudice that we seek to avoid. Moreover, it may detract from our efforts to simply tell our stories as stories without categorising them into psychosocial disability or other pigeonholes, and may fail to respect the person’s agency in the sense discussed above, in connection with recommendations of the Special Rapporteur on Torture to do away with ‘rehabilitative’ and ‘correctional’ concepts in criminal justice.

Ultimately some balance needs to be struck between making explicit an obligation to accommodate decision-making diversity, both related to disability and related to all other social diversity, through tolerance for rule-breaking behaviour, guided by an analogue to the criteria for reasonable accommodation, and creating inclusive practices both in criminal proceedings and in alternatives to such proceedings, that would allow all our stories to be heard while being judged only for how we have intolerably broken legal rules and thereby caused harm, and not for our diversity or distress. A question that directs the trier of fact to consider what factors impacted on the defendant’s decision-making, free from psychiatric or psychological diagnosis or examination of any kind, can help to broach the subject but is not entirely satisfactory as an end goal.

⁷⁵ For a comprehensive discussion of this approach, see Slobogin (2000) and Slobogin (2010). Sarah Knutson, in a personal communication, suggests the following defences as examples that could address people’s subjective realities: automatism (the muscles act without control by the mind or with a lack of consciousness, which might include falling into a dreamlike state); intoxication as a defence to specific intent (which should include prescribed medications and withdrawal effects); mistake of fact (often used in conjunction with another defence, where the mistake led the defendant to believe their actions were justifiable under the second defence); necessity/lesser harm; lawful capacity of office, including civilians whose assistance is requested by a first responder, and ‘Good Samaritans’ who cause injury while attempting to help a person in distress; self-defence; and duress. Some of these defences are already defined with reference to subjective reality; with respect to others, Knutson suggests that reasonable accommodation might be invoked to support the introduction of a person’s subjective reality as a factor to be considered.

⁷⁶ Intentional Peer Support <http://www.intentionalpeersupport.org>.

⁷⁷ But see Stuntz (2008) for the view that open-ended mens rea favours racial equity at least when locally chosen juries are the triers of fact.

⁷⁸ See examples given in Nourse (2003).

⁷⁹ McCaslin (2007).

⁸⁰ World Network of Users and Survivors of Psychiatry (2008).