Constructing criminal insanity: The roles of legislators, judges and experts in Norway, Sweden and the Netherlands

This article provides a discussion about criminal insanity regulation in Norway, Sweden and the Netherlands, with a focus on the roles of legislators, judges and experts in the concretisation of the legal meaning of criminal insanity. The authors recognise that these three countries reflect different ideal type rule constructions that are interesting to study comparatively. The article addresses the following overall questions: To what extent and in what way do the different rule constructions also involve different views on the roles of legislators, judges and experts? And in case of competing models, which is the better solution? To investigate and eventually answer these questions, the authors analyse the content and legislative considerations of the relevant rules, how these rules are applied and understood by judges and experts, and how different understandings of insanity, of legislators, judges and experts, depend on each other. The authors show how the different rule constructions represent different considerations on the adequate roles of the legislator, judges and experts. They argue that what is important is not what precise division of roles that is settled, but that this interplay functions to secure clear and robust rules, and that each of the three countries has room for improvement in this regard.

The Insanity Defence: How Do We Handle Doubt?

This paper discusses how the legal definition of criminal insanity has been altered several times in the Norwegian criminal law, most recently in June 2019. There are difficulties in communicating between psychiatric experts, legal experts, and lay judges, since the description and understanding of psychotic cognition as well as the definition of legal terms are not equally understood. Not all insanity cases are clear-cut. The Norwegian forensic experts must not conclude that the charged person is considered ‘psychotic’ in the legal sense if they are not clinically sure of this. The courts, on the other hand, must not conclude that a person is ‘sane’ if there is doubt about this. This paper discusses how there is little practical knowledge of how experts and courts handle such doubts, and highlights the lack of discussion of these questions in the legal sources.

Criminal Insanity: Concepts and Evidence

The article presents an analytical model of possible legal concepts of criminal insanity and highlights evidential aspects of these concepts. The framework is used to differentiate between insanity rules from different jurisdictions, and to explain the recent amending of the Norwegian rule on criminal insanity. The arguments made are general and of relevance to all types of legal regulations on divergent mental states.

Criminal Insanity, Psychosis and Impaired Reality Testing in Norwegian Law

How mental disorder relates to criminal insanity is a contested matter. Norway has a tradition of using a ‘medical model’ for the definition of criminal insanity that is unique in an international perspective. According to this model, insanity is determined only in relation to a medical criterion, so that all that is required is the presence of a qualifying mental disorder. Criminal insanity is, under the current rule, equated with psychosis, although this rule has recently been subject to a law reform. This article explains and discusses this medical model by gathering together legal, forensic, and clinical empirical perspectives on the legal meaning and relevance of psychosis. The article will provide an explanation of the background of the medical model in Norwegian law, and the justifications for tying criminal insanity to psychosis. It will also explain how criminal insanity is operationalised in forensic practice, and discuss the legal conceptualisation of psychosis from a medical perspective. A main conclusion is that the legal meaning of psychosis is unclear, and the authors describe several challenges in legal and forensic practice. The authors emphasise the need for further knowledge development in the intersection between law and medicine.

The Case of Styllou Christofi: Criminal Insanity As a Defense In Court [University of Central Oklahoma]

Criminal insanity as a defense continues to be an expulatory plea. The law enforcement and the courts in London have dealt with information reported regarding violent people during 1954. It focuses on the case of Christofi Styllou and her crime committed in 1952, her incarceration from 1952 through her trial, and execution in 1954. The research for this project focuses on court rulings relating to the determination of behaviors, either identified as understanding the difference between having a psychological disorder or defined as criminally insane. In the U.S., the Durham Rule applies, which means that a jury could determine whether the defendant had a mental diagnosis, or whether he or she could be charged guilty by insanity. This precedent does not apply to the UK. Nonetheless, in the U.K., multiple acts of legislation relating to criminal insanity passed between 1800 and 1954. Three vital legislative acts passed before the Christofi hearings, including the Capital Punishment Act of 1868, Criminal Lunacy Act of 1884 section 2 (4), and the Mental Deficiency Act 1913

Moral insanity and psychological disorder: the hybrid roots of psychiatry

This paper traces the significance of the diagnosis of ‘moral insanity’ (and the related diagnoses of ‘monomania’ and ‘ manie sans délire’) to the development of psychiatry as a profession in the nineteenth century. The pioneers of psychiatric thought were motivated to explore such diagnoses because they promised public recognition in the high status surroundings of the criminal court. Some success was achieved in presenting a form of expertise that centred on the ability of the experts to detect quite subtle, ‘psychological’ forms of dangerous madness within the minds of offenders in France and more extensively in England. Significant backlash in the press against these new ideas pushed the profession away from such psychological exploration and back towards its medical roots that located criminal insanity simply within the organic constitution of its sufferers.

Criminal insanity and psychiatric diagnoses in Greek penal cases

IntroductionTo our knowledge, few studies address the issue of criminal responsibility among psychiatric offenders. In Greece, articles 34 and 36 of the penal code regulate criminal insanity and diminished responsibility, respectively.ObjectivesThe objective of the present study was to provide psychiatric/legal data considering the appeal to articles 34/36 of the Greek penal code.MethodsLegal case files of 100 adult subjects, 90 male/10 female, 88 Greeks/12 foreigners were examined.ResultsAccording to the first degree court, one defendant was found criminally insane, 29 with partial responsibility, while the rest were regarded as fully capable. The decisions of the court of appeal/the supreme court of appeal were 2 criminally insane, 36 partially responsible and 62, fully criminally responsible. The decisions were unanimous in 78% of the cases.The most common diagnoses were schizophrenia spectrum psychosis (18%), antisocial/borderline/mixed personality disorder (15%) and substance use disorder (15%). Court decisions of criminal insanity/diminished responsibility were higher when the perpetrator had an Axis I diagnosis (47.5%), significantly lower in cases of personality disorder (22.2%) and even lower in cases of substance use disorder (16.7%). In patients with prior hospitalizations the percentage of criminal insanity/diminished responsibility was 55.6%, significantly higher than in cases without (24.4%).ConclusionsSchizophrenia is the most common mental disorder correlated with offenders criminally insane/partially responsible, while a history of psychiatric hospitalization is a very strong positive predictive factor for the successful appeal of the aforementioned articles.Disclosure of interestThe authors have not supplied their declaration of competing interest.

Agreement between psychiatric evaluations and court decisions concerning criminal responsibility

IntroductionTo our knowledge, a relatively small number of studies address the agreement between psychiatrists and court decisions concerning criminal responsibility among psychiatric offenders.ObjectivesThe objective of the present study was to examine the agreement between psychiatric evaluations and court decisions in Greek penal cases.MethodsLegal case files of 100 adult subjects, 90 male/10 female, 88 Greeks/12 foreigners were studied, and agreement was assessed by the κ (kappa) statistic.ResultsSeventy eight percent of the subjects had had contact with psychiatric services before the commitment of the crime. The most common diagnoses were schizophrenia spectrum psychosis (18%), antisocial/borderline/mixed personality disorder (15%) and substance use disorder (15%). In 30% of the cases criminal insanity/partial responsibility was attributed in the first-degree court. The presence of a psychiatrist (n = 63), attending, defense, prosecution or appointed by the court, significantly increased the possibility of such an attribution (41.3% versus 10.8%).The highest agreement (κ = 0.780) was observed between court's decision and the evaluation of the psychiatrist appointed by the court, in the 35 cases in which such an expert was present (P < 0.001). Very significant agreement (κ = 0.805) was observed between the decisions of second and first-degree courts (P < 0.001). In 91% of the cases, the decisions remained unchanged.ConclusionsCriminal insanity/diminished responsibility, were attributed in 30% of the reviewed cases. The presence of a psychiatrist already at the first-degree court is a prerequisite for such an attribution, especially when, he is appointed by the Court.Disclosure of interestThe authors have not supplied their declaration of competing interest.