A Critical Comparative Study Of The Insanity Defence
Author: LawSphereX
Category: General Law
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A CRITICAL COMPARATIVE STUDY OF THE INSANITY
DEFENCE
Aakriti Srivastava, Dr. Ram Manohar Lohiya National Law University
INTRODUCTION
The insanity defence is claimed in only one in a hundred cases in the United States and out of those successful in only twenty-five per cent. 1 A similar scenario can be seen in criminal justice systems around the world, making it a front-running contender for the title of the least used defence. Yet the insanity defence gets significantly greater scrutiny from both academia and society. One significant factor is that the insanity defence has been invoked, either successfully or unsuccessfully, in numerous high-profile cases that have captured the public's attention and sparked debates around mental health and justice.
Lord Onslow,2 King George III,3 Queen Victoria,4 Edward Drummond (mistaken for Sir Robert Peel)5, President Garfield (assassinated) 6 and President Regan7 were public dignitaries who have the common experience that they were shot at and the assailant claimed insanity as a legal excuse. Such incidents have led to public outrage and attention to the defence and made it one of the most contentious defences that still exist in major criminal justice systems around the world. It is a widely acknowledged fact the defence of insanity in the present form is inadequate. In this article, we will conduct a critical study into the test for insanity defence as is present in India with a reference to practices and experiences prevalent in other jurisdictions and critically analyse what changes could be made to the present legal scenario to achieve the aim of justice.
1 “Use of Insanity defence, OPEN OREGON, https://openoregon. pressbooks. pub/mentalcrimjustsys/chapter/6-4use-of-the-insanitydefense/#:~:text=In%20the%20federal%20criminal%20system%2C%20for%20example%2C%20over,is%20su ccessful%20only%20about%2025%25%20of%20the%20time. ”
2 “Arnold’s Case 5 (1724) 16 How. St. Tr. 69.”
3 “Hadfiled’s Case, 2 (1800) 27 How. St. Tr. 12.”
4 “Regina v. Oxford, 76 (1840) 9 Car. & P. 525.”
5 “M Naughten, 7 (1843) 10 Cl. & Fin. 2.”
6 “United States v. Guiteau, (1882), 10 Fed. 161.”
7 “United States v. Hinckley, 672 F. 2d 115.”
BACKGROUND
The insanity defence is recognised in most systems around the world as the primary justification for its presence is to not punish a person who cannot be deemed responsible for his actions and thus to do justice which is the aim of all progressive criminal justice systems. It is further also supported by the fundamental conception of criminal laws that mens rea is an essential element of crime and the same could not be established in such cases. When the roots of the development of insanity defence in the English legal system are traced it can be seen that essentially question of insanity was not a question of law but of fact rather it is the question of responsibility which belongs to the domain of law. Though now it is very much a domain claimed to be dominated by law. 8 Earlier the topic was covered under two heads mental insufficiency (idiots) and mental perversity (insane).
It was tried by jury as a question of fact and it is only in the eighteenth and early nineteenth century that through judicial precedents various stricter legal tests were laid down gauging insanity. The recognition of these rules in codified statutes cemented the predominance of legal tests to decide the question of legal insanity. 9 COMPARATIVE OUTLOOK British Common Law- The Original M’Naghten Test & Commonwealth Imports In the seminal case of M’Naghten, two legal questions were put forth House of Lords transpiring out of public discontent over the acquittal of Daniel M’Naghten for murdering Edmund Drummond whom he had confused for former British Prime Minister Sir Robert Peel. The answers to the two questions have been characterized as the primary and secondary rule respectively.
The first question was: “In what terms ought the question [of insanity] to be left to the jury as to the prisoner’s state of mind at the time when the act was committed? ” The answer which formed the primary rule was, “... to establish a defence on the ground of insanity it must be proved that, at the time of the committing of the act the party accused was labouring under 8 “The History of Insanity as a Defence to Crime in English Criminal Law, Homer D. Crotty, Vol. 12, No. 2, California Law Review, 105-123 (Jan. 1924). ”
9 Id.
such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or, if he did know it, that he did not know he was doing what was wrong. ” And the second question was: “If a person under an insane delusion as to existing facts commits an offence in consequence thereof, is he thereby excused? ” The answer which comprises the secondary rule that is not adopted by several jurisdictions was, “... [if he is] under such partial delusion only, and is not in other respects insane, we think that he must be considered in the same situation as to responsibility as if the facts concerning which the delusion exists were real.
” It is to be noted that the original primary M’Naghten rule is far more limited than the various present modifications in the following ways10: i) The terminology used to denote mental aberrations ‘disease of mind’ when interpreted literally would exclude a person born with mental deficiency or those who suffer from arrested growth. The limitation was overcome by commonwealth nations either by adopting liberal interpretations of the term ‘disease’ or through substitution with other liberal terms. Such as “mental disease or natural mental infirmity”11, “natural imbecility or disease”12, or even a medically inclined terminology such as “disturbance or defect, to a substantially disabling degree, of perceptual interpretation, comprehension, reasoning, learning, judgment, memory, motivation or emotion.
”13 ii) The equivocal terminology “nature and quality” doesn’t make it clear whether the purpose is to the act or the consequence. The ambiguity has been resolved either as per the benevolence of the judiciary or the resolution of the legislature. Terminologies such as “understand”14, “appreciate”15 or “know” have been used by 10 “The Insanity Defence in Criminal Laws of Commonwealth Nations, Stanley Yeo, Singapore Journal of Legal Studies, 241-263,December 2008). ” 11 “Southern Nigeria Criminal Code Act, 1961, s. 28; Queensland Criminal Code Act 1899 (Reprint No. 6H), s. 27. ”
12 “Section 23. Prior to 1992, the Canada Criminal Code (R.S.C., 1985, c. C-46).”
13 “S. 428B. This provision has since been replaced by s. 28 of the Australian Capital Territory's Criminal Code
2002 (A2002-51).”
14 “For example, see New Zealand Crimes Act 1961 (No. 43 of 1961), s. 23(2)”
15 “Section 16(1), Canada Criminal Code (R.S.C., 1985, c. C-46).”
various commonwealth natures to qualify the terminology. iii) “Wrong” is ambiguous as it is not qualified by legal or moral. The commonwealth nations have used it in either and sometimes even both senses together. The New Zealand Crimes Act opted for moral wrongness. Indian Scenario- The Modified M’Naghten Defence The Indian defence of insanity is codified under Section 84 of the Indian Penal Code and retained under Section 22 of Bhartiya Nyaya Samhita, 2023 states that, “Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law.
”16 The following modifications are to be noted: i) The concept of unsoundness of might is a revision of the M’Naghten principle which broadens the scope of the definition as now insanity by because of arrested mental growth or mental aberrations or under the influence of any substance can also be included within the scope of the defence. This has been opted for by other Commonwealth nations such as Malaysia and Singapore. ii) The requirement of incapability of knowing is restrictive as compared to other available terms such as ‘to know’ as it brings in the question of capability which is more restrictive. iii) The concept of the nature of the act in India includes both the nature as well as the consequences of the act. iv) The terminology ‘wrong or contrary to law’ includes both moral as well as legal wrong.
Thus, India has opted for a much wider test for insanity than the original M’Naghten rule. Yet it could at best be classified as a modified M’Naghten rule as it still largely depends upon cognitive tests and lacks any reference to conative abilities. If a person is capable of knowing
16 “Indian Penal Code, 1860, § 84, Acts of Imperial Legislature, No.1 (1860).”
the nature of the act but not capable of controlling his actions due to a mental disorder or psychosis or neurotic substance, he would still be held liable. Essentially it would lead to the conviction of a person who was actually in no control of his actions. The US Experience In the US there has been much debate around the defence of insanity with the common theme of a demand to narrow it down specifically after the Hinckley17 trial. This has led the States to make different choices. There are majorly four groups of states. 18 Firstly, are those who have abolished the defence of insanity. These are Kansas, Montana, Idaho and Utah. Secondly are those states which use the M’Naghten rule or a modified form of it. These include Alabama, Arizona, Florida, Louisiana and Mississippi. Third are those who use the Model Penal Code Rule or a modified version of it.
The rule developed out of recommendation American Law Institute and essentially entails that, “a mental health professional must diagnose a person with a mental defect, and the person must prove either they did not know right from wrong or could not control an impulse that led to the criminal act. ”19 The fourth is the miscellaneous who use the M’Naghten rule along with the irresistible impulse test such as in Texas, Virginia & New Mexico or the Durhan Test as in New Hampshire. The irresistible impulse test absolves those who because of a mental disorder are not able to control their actions. Whereas under the Durham Test, a criminal defendant is not held liable for a criminal act if the act stemmed from a mental disease or defect that the defendant possessed at the time of the crime. ABOLITION ARGUMENT The abolition arguments have two sub classifications: total and partial.
There are blessedly only a few who have advocated for total abolition whereas the partial abolition argument has gained some traction. Partial abolition advocates lament the presence of a separate insanity defence as
17 Supra Note 7.
“Linda Sanabria, The Insanity Defence Among States,
FIND LAW, https://www. findlaw. com/criminal/criminal-procedure/the-insanity-defense-among-the-states. html. ” “Samuel Storm, The Model Penal Code Test for Legal Insanity, FIND LAW, https://www. findlaw. com/criminal/criminal-procedure/the-model-penal-code-test-for-legal-insanity. html (last visited 13 February 2023). ” they deem it unnecessary. They argue that instead, the defendant who wants to be absolved can take up the defence of no mens rea under the common law. The argument is also a reaction against the tendency of the legal system to saddle the extra responsibility of proving mental conditions at the time of offence under a technical legal test which can be very stringent, inflexible, archaic and not up to date with the scientific developments.
It has also been seen that there is a degree of stigma attached to pleading the insanity defence and thus being labelled legally insane. The argument rests on the belief that no matter how perfect an insanity defence is worded there will always be a genuine case that will be left behind. 20 Thus some advocate that instead “the ordinary common law-established principles of mens rea, intent, recklessness and knowledge should apply. ”21 The argument has been criticised on the ground that the mens rea approach would lead to the exclusion of people as the mens rea concept is in itself a reference to only a consciousness not to any qualitative aspect and medical conditions. 22 Moore has criticized the argument and stated, “People are not responsible because they are crazy, not because they always lack intentions, are ignorant, or are compelled.
”23 It could lead to the conviction of discorded people. The insanity defence is seen as essential to maintain the morality of the criminal justice system. 24
CRITICAL
ANALYSIS
The study above shows that the discontent with the test of legal insanity is present in major criminal justice systems and it has been a difficult experience to agree on any one of the contemporary tests. The discontent can be gauged by the fact that there has been an abolition of the defence in certain US states whereas there is continuous demand to narrow down the defence in other states as well. Whereas in the UK the discontent is regarding the narrow scope and advocacy for broadening the defence.
20 “Claire Hogg, The Insanity Defence: An Argument for Abolition, 79 J. CRIM. L. 250 (2015).”
21 “N. Bonnie and R. Morris, Should the Insanity Defense be Abolished? An Introduction to the Debate, (1985-7)
1 Journal of Law and Health 113 at 117..”
22 “Mark Hathway, The Moral Significance of the Insanity Defence, 73 J. CRIM. L. 310 (2009).”
23 “M. S. Moore, Law and Psychiatry: Rethinking the Relationship, 190-245, 223 (Cambridge University Press: Cambridge, 1984).” 24 “R. J. Bonnie, The Moral Basis of the Insanity Defense, 69 American Bar Association Journal 36 (1983).”
In India, the test of legal insanity is a modified M’Naghten test which on many fronts is broader than the original rule. In my opinion, abolition whether partial or total would be a step in the wrong direction as it would disregard the achievements made in the field and would bring chaos as the mens rea approach has its pitfalls. However, there is a need to improve the present test by adding conative elements which can be done by adding the term “or control his conduct” at the end of the present test. Also, judicial creativity is required to progressively interpret the ‘unsoundness of mind’ to bring it up-to-date and bring within its purview concepts such as settled insanity.