Forensic Psychology For Dummies (99 page)
Read Forensic Psychology For Dummies Online
Authors: David Canter
Prior to sentencing,
when the convicted person’s likelihood of changing, and particularly how dangerous he is, can be crucial to determining what form of sentencing is applied.
A court of law isn’t really interested in whether a person charged with murder, robbery, arson or any other crime thinks that he’s Napoleon, that computer hackers are controlling his mind or that he has to rid the planet of aliens masquerading as traffic wardens. The concern of the legal system is whether the person had ‘a guilty mind’, or to use the Latin phrase that I introduce in Chapter 1,
mens rea.
In other words, did the defendant know at the time he committed the crime that what he was doing was wrong; did he know that he was doing it; and did he have voluntary control over his actions. If he didn’t, he can offer the court the ‘insanity defence’: the plea of ‘not guilty by reason of insanity’. Establishing this in reality, however, turns out to be a lot trickier than you may expect.
Contrary to popular belief, people claiming that they’re not guilty by reason of insanity is extremely rare. Only about 1 in 100 serious cases in the US involve a person making this plea, and on average just 1 in 4 of those are successful.
Claiming diminished responsibility
Many people have tried to define insanity in legally acceptable ways. In fact, a sign of a civilised society is that it doesn’t want to find a person guilty only on what he did but also based on his intentions. But probing into anyone’s mind is extremely difficult and doing so in a way that fits the requirements of legal advocates is even more challenging. For this reason, continuous debate rages about the legal definition of insanity, with the variations very briefly summarised in the nearby ‘A very brief history of defining insanity’ sidebar.
A very brief history of defining insanity
The legal definition of insanity has varied over the centuries as the understanding of mental illness has changed:
18th century: ‘The Wild Beast’ test was the idea that for a person to be regarded as insane in law the person would be acting like a brute or infant, completely unaware of what he was doing, with no memory of it or understanding of its implications.
19th century: The McNaughton rules that I mention in Chapter 1 were the start of the modern concept that the person can suffer from a ‘disease of the mind’, causing him not to understand the nature of what he did and that it was wrong.
20th century: Modifications made include: weakening the ‘understanding’ requirement to ‘lack substantial capacity to appreciate’ that what he did was wrong; putting emphasis on a person’s inability to control his actions; and the defendant needing to prove that he’s insane with clear and convincing evidence, rather than the prosecution demonstrating that he’s sane beyond reasonable doubt. In some jurisdictions, the verdict of ‘guilty but mentally ill’ was introduced in addition to ‘not guilty by reason of insanity’. The intention was to allow the person to be assigned to a treatment programme and when/if that was successful to be moved to a normal prison.
With the developed understanding during the middle of the 20th century that mental illness can take many forms, a further refinement was added to legal codes in many countries. In the US, the new term was
diminished capacity;
in the UK,
diminished responsibility.
The result was to weaken the requirement that the accused had
mens rea.
If a person pleads diminished responsibility, he can claim that he didn’t intend to commit the crime although he accepts he did it. In murder cases, he may be charged with the lesser crime of manslaughter or its equivalent and so get a lesser sentence. Defendants and their lawyers can draw upon a number of different mental disorders to support the claim of diminished responsibility:
is when the accused claims that he can’t remember significant events to an extent that’s far more severe than normal forgetfulness, particularly if this is related to some physical or intense psychological trauma. Amnesia is particularly difficult to validate because a person can so readily claim to have forgotten something. Claims of amnesia occur in quite a few murder cases.
is the condition in which actions occur involuntarily and quite possibly without the person even being aware that he’s doing them. The clearest examples are those in which a person is violent during his sleep without ever waking up. Automatism is a recognised clinical condition and so if assessed by a competent clinician, which is usually a psychiatrist but can be a forensic psychologist, is rather more difficult to fake than might be expected.
,
otherwise known as multiple personality disorder, is the condition reflected in Robert Louis Stevenson’s famous tale
Dr Jekyll and Mr Hyde.
Kenneth Bianchi claimed that he had an involuntary switch to a different identity, but he was discovered to be faking and was convicted of being the Hillside Strangler (see the later sidebar ‘Tricking the trickster
’
).
can be used as a defence, especially if the person can demonstrate that he wasn’t aware of the possible impact of imbibing so much alcohol or other drugs in increasing the risk of committing the crime, and especially if he can demonstrate that his drinks were spiked. Just being drunk when committing a crime may attract a more severe punishment, but if the defendant can show he had not intended to get drunk this could be a mitigating circumstance.