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Abstract
This article summarises the main arguments for the retention of the defence of mental impairment presented in an online debate that took place in August 2021. It canvases the justifications for the defence, rebuts human rights arguments for its abolition and outlines why there is a lack of viable alternatives. It concludes that advances in knowledge should lead to the reform of the defence rather than its abolition.
Ethical standards
Declaration of conflicts of interest
Bernadette McSherry has declared no conflicts of interest
Danny Sullivan has declared no conflicts of interest
Ethical approval
This article does not contain any studies with human participants or animals performed by any of the authors.
Ethics approval was not required for this article which analyses existing literature.
Notes
1 S Bronitt and B McSherry, Principles of Criminal Law (Thomson Reuters 2017, 4th ed) 348.
2 V Tadros, Criminal Responsibility (Oxford University Press 2005) 117.
3 Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) s 28; Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 20; Criminal Code (Qld) s 27; Criminal Code (WA) s 27; Criminal Law Consolidation Act 1935 (SA) s 269C; Criminal Code (Tas) s 16; Criminal Code (ACT) s 28; Criminal Code 1983 (NT) s 43C.
4 R v M’Naghten (1843) 10 Cl and Fin 200.
5 Ibid 210.
6 H Fingarette, The Meaning of Criminal Insanity (University of California Press 1972) 144; A Goldstein, The Insanity Defense (Yale University Press 1967) 47–49; F McAuley, Insanity, Psychiatry and Criminal Responsibility (Round Hall Press 1993) 23.
7 Criminal Code (Cth) s 7.3(1)(c); Criminal Code (Qld) s 27(1); Criminal Code (WA) s 27(1); Criminal Law Consolidation Act 1935 (SA) s 269C(1)(c); Criminal Code (Tas) s 16(1)(b); Criminal Code (ACT) s 28(1)(c); Criminal Code (NT) s 43C(1)(c).
8 Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) s 28; Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 20.
9 Aristotle, The Eudemian Ethics on Virtues and Vices, edited and translated by H Rackman (Harvard University Press 1971) 205, [1215a].
10 H de Bracton, The Digest of Justinian, edited and translated by Mommsen T, Krueger P and Watson A (Book FortyEight 1985) 8.12.
11 Mental Health Act 2007 (NSW) Pts 2 and 3; Mental Health Act 2014 (Vic) Pt 4; Mental Health Act 2016 (Qld) Ch 5; Mental Health Act 2014 (WA) Pts 6-8; Mental Health Act 2009 (SA) Pts 4 and 5; Mental Health Act 2013 (Tas) Pts 3-5; Mental Health Act 2015 (ACT) Ch 5; Mental Health and Related Services Act 1998 (NT) Pts 6 and 7.
12 One example where changing attitudes have resulted in the abolition of an excuse-based defence relates to the partial defence of provocation, which reduces murder to manslaughter. It was abolished in Tasmania in 2003, Victoria in 2005 and Western Australia in 2007 in response to concerns that it was gender-biased and open to abuse because the accused’s version of events is the sole source of evidence of provocation: see Bronitt and McSherry (n 1) 338ff.
13 VP Hans and D Slater, ‘John Hinkley Jr. and the Insanity Defense: The Public’s Verdict’ (1983) 47(2) Publ Opin Quar 202, 209.
14 Idaho abolished the defence in 1982 and Utah in 1983. Kansas abolished it in 1995. Montana had previously abolished the defence in 1979.
15 C Slobogin, ‘The Guilty But Mentally Ill Verdict: An Idea Whose Time Should Not Have Come’ (1984–85) 53 George Wash Law Rev 494.
16 E Silver, C Cirincione, and HJ Steadman, ‘Demythologizing inaccurate perceptions of the insanity defense’ (1994) 18 Law and Human Behavior 63; see also RD Mackay, ‘The insanity defence in operation’ (2014) 65 Northern Ireland Legal Quar 153.
17 See e.g. WJ Sabol and ML Baumann, ‘Justice Reinvestment: Vision and Practice’ (2020) 3 Annu Rev Criminol 317.
18 Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) s 69.
19 UN GAOR, 61st sess, 76th plen mtg, UN Doc A/RES/61/106 (24 January 2007); opened for signature 30 March 2007, 2515 UNTS 3 (entered into force 3 May 2008).
20 While Australia has ratified the Convention on the Rights of Persons with Disabilities, its articles do not form part of Australian law unless they are specifically incorporated by the Commonwealth Parliament into domestic law: Kioa v West (1985) 159 CLR 550, 570. Such incorporation has not to date occurred.
21 T Minkowitz, ‘Rethinking Criminal Responsibility from a Critical Disability Perspective: The Abolition of Insanity/Incapacity Acquittals and Unfitness to Plead, and Beyond’ (2014) 23 Griffith Law Rev 434, 462.
22 B McSherry, ‘Legal Capacity under the Convention on the Rights of Persons with Disabilities’ (2012) 20(1) J Law Med 22; B McSherry and A Butler, ‘Support for the Exercise of Legal Capacity: The Role of the Law’ (2015) 22(4) J Law Med 739.
23 See e.g. the literature discussed in B McSherry and K Wilson, ‘The Concept of Capacity in Australian Mental Health Law Reform: Going in the Wrong Direction?’ (2015) 40 Int J Law Psychiatr 60; B McSherry and L Waddington, ‘Treat with Care: The Right to Informed Consent for Medical Treatment of Persons with Mental Impairments in Australia’ (2017) 23(1) Austr J Hum Rights 109.
24 K Wilson, Mental Health Law: Abolish or Reform (Oxford University Press 2021) 29.
25 M Perlin, ‘“God Said to Abraham/Kill Me a Son”: Why the Insanity Defense and the Incompetency Status are Compatible with and Required by the Convention on the Rights of Persons with Disabilities: Human Rights Brinksmanship or Evidence it Does Not Work? (2017) 54 Am Crim Law Rev 141.
26 E.g. in the oft-quoted words of Anatole France from The Red Lily (1894), ‘the law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread’.
27 See Children and Young Persons (Care and Protection) Act 1998 (NSW); Children, Youth and Families Act 2005 (Vic); Child Protection Act 1999 (Qld); Children and Community Services Act 2004 (WA); Children and Young People Safety Act 2017 (SA); Children, Young Persons and their Families Act 1997 (Tas); Children and Young People Act 2008 (ACT); Care and Protection of Children Act 2007 (NT).
28 See ‘Raise the Age’, <https://www.raisetheage.org.au/> accessed 14 November 2021.
29 Human Rights Council, Thematic Study by the Office of the United Nations High Commissioner for Human Rights on enhancing awareness and understanding of the Convention on the Rights of Persons with Disabilities, 10th sess, UN Doc A/HRC/10/48 (26 January 2009) 15, <https://www2.ohchr.org/english/bodies/hrcouncil/docs/10session/A.HRC.10.48.pdf> accessed 14 November 2021.
30 Associated Press, ‘Classmate Slaying Suspect Called Erratic’, The Oklahoman, 12 April 2007, <https://www.oklahoman.com/article/3038640/classmate-slaying-suspect-called-erratic> accessed 14 November 2021.
31 MW Pearce and LJ Butts, ‘Insanity in the State of Idaho’ (2013) 44(2) Monitor Psychol 28, 28.
32 Idaho Code § 18–207(1).
33 Idaho Code § 18–207(3).
34 John Joseph Delling v Idaho 568 US (2012).
35 C Slobogin, ‘Eliminating Mental Disorder as a Legal Criterion in Deprivation of Liberty Cases: The Impact of the Convention on the Rights of Persons with Disabilities on the Insanity Defense, Civil Commitment and Competency Law’ (2015) 40 Int J Law Psychiatr 36.
36 Ibid 39.
37 J Walvisch, ‘Sentencing offenders with impaired mental functioning: Developing Australia’s “most sophisticated and subtle” analysis’ (2010) 17 Psychiatr Psychol Law 187; J Walvisch, ‘“Mental Disorder” and Sentencing: Resolving the Definitional Problem’ (2018) 26(1) J Law Med 159; J Walvisch, ‘Defining “Mental Disorder” in Legal Contexts’ (2017) 52 Int J Law Psychiatr 7.
38 Bronitt and McSherry (n 1) 135ff.
39 J Goldstein and J Katz, ‘Abolish the “Insanity Defense” - Why Not?’ (1963) 72(5) Yale Law J 853, 868.
40 See e.g., Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 23.
41 B McSherry, ‘Hospital Orders for Offenders with Mental Illnesses: An Appropriate Diversionary Option’ (2009) 16(4) J Law Med 568.
42 SJ Morse and RJ Bonnie, ‘Abolition of the Insanity Defense Violates Due Process’ (2013) 41(4) J Am Acad Psychiatr Law 488, 490.
43 Tasmania Law Reform Institute, Review of the Defence of Insanity in s 16 of the Criminal Code and Fitness to Plead (Issues Paper No 27, February 2019) <https://www.utas.edu.au/__data/assets/pdf_file/0016/1201093/Insanity_IP_A4_03_print.pdf> accessed 14 November 2021.
44 Victorian Law Reform Commission, Review of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Report, June 2014) <https://www.lawreform.vic.gov.au/wp-content/uploads/2021/07/Review_of_the_Crimes_Mental_Impairment_and_Unfitness_to_be_Tried_Act_0.pdf> accessed 14 November 2021.
45 New South Wales Law Reform Commission, People with Cognitive and Mental Health Impairments in the Criminal Justice System: Criminal Responsibility and Consequences (Report 138, May 2013) <https://www.lawreform.justice.nsw.gov.au/Documents/Publications/Reports/Report-138.pdf> accessed 14 November 2021.
46 New Zealand Law Commission, Mental Impairment Decision-Making, and the Insanity Defence (Report R120, 22 December 2010) <https://www.lawcom.govt.nz/our-projects/criminal-defences-insanity-partial-defences> accessed 14 November 2021.
47 s 30.
48 L Groning, UK Haukvik, SJ Morse and S Radovic, ‘Remodelling Criminal Insanity: Exploring Philosophical, Legal, and Medical Premises of the Medical Model Used in Norwegian Law’ (2022) 81 Int J Law Psychiatry 101766.
49 See e.g. A Knox, ‘Will Utah Alter Its Insanity Defence?’, KSL.com, 29 September 2019, <https://www.ksl.com/article/46647758/will-utah-alter-its-insanity-defense> accessed 14 November 2021.