The thesis focuses on the question of whether it is possible, and when it is possible, to use the institute of insanity in order to absolve the offender from guilt due to the doctrinal reason of the non-existence of a willing act. Furthermore, it explores why, in practice, the institute of insanity is used when a decision of acquittal should be issued, as it was established that willingness to act did not exist. Who, today, is the person for whom the assumption of sanity exists and how are offenders who do not understand their actions, and for various reasons cannot control them, treated in terms of law and of criminal policy. From the doctrinal point of view, they can be treated on a narrow bipolar axis: mentally ill by using the institute of insanity, mentally healthy by using the rules regarding willingness to act and guilt.
In the thesis, the aforementioned question is first presented by outlining how the institute of insanity has developed throughout history. It is evident that in doctrinal terms, as well as in terms of criminal policy, the basis for the absolution from guilt has been the same since classical antiquity. Insanity is the lack of existence of willingness to act due to mental illness, although it may be referred to by different criminal policy terms and there are different translations used for the absolution from guilt.
While developing, the very old institute of insanity has faced two related and difficult issues. The formula of insanity, neither in terms of the doctrine, nor in terms of criminal policy, has adequately established how to deal with those offenders who, despite suffering from mental illness, have some understanding and control of their actions (in the language of Roman law, at the time of their lucid moments, while during the Enlightenment the term used was ‘significant mental impairment’). In particular, it is inadequate how criminal policy treats healthy offenders who, for various reasons in a legally comparable way, fail to understand and control their actions due to non-psychiatric reasons (strong outbursts, personality disorders, hypnosis, acute alcohol intoxication).
In time, case law has started interpreting the institute of insanity loosely and uses it, in particular, when the law does not provide adequate solutions for comparable factual situations related to the lack of ability to understand and control actions. This was most obvious in cases when the offender should have been acquitted after the assumption of a lack of ability to act (of the coincidence of actus reus and mens rea) was confirmed or the existence of circumstances excluding guilt or criminal culpability was established. In the case of very serious criminal offences committed by non-mentally ill offenders who at the time of the offence, for various reasons (actions in acute conditions caused by psychoactive substances, hypnosis, relevant outbursts, desire to murder and other non-psychiatric reasons), equally lacked control of their actions, the institute of insanity is used in order to avoid acquittal, although there is no formal or legal basis for it.
Insanity is sui generis an institute within both the criminal law assumption of action and the formal law institute of guilt. Such a particular position of insanity in two cascading institutes of normatively recognised absolutions from guilt in criminal law is based on criminal policy decision to prevent the danger posed by mentally-ill offenders and, as a consequence, their exclusion from society, as well as the decision regarding the need for the management of their medical treatment within the criminal law system. The latter refers to orders for protective measures of psychiatric treatment and placement in a clinic for forensic psychiatry, or else to outpatient psychiatric treatment, which is in any case not a criminal sanction but rather a safety measure. It is logical that such a measure cannot be imposed on a person who is not mentally ill, even if it was established in the proceedings that, at the time of committing an offence due to a medical condition, they did not understand the significance of their actions or could not control them. Such an offender cannot undergo any medical treatment. However, as it was established that they lacked the will to act, they could not be prosecuted. The prosecutors usually choose one of the variations of the institute of insanity, considering the normative palette, in particular substantially diminished sanity, where a criminal sanction can be imposed, and, in the extreme case, the proposals for placement in a psychiatric institution.
The existence of a mental disorder is a precondition for establishing insanity, which means that in the case of a mentally healthy offender it is not possible to start establishing whether they are insane. If it was found that they failed to understand their actions and had no control over them, it is only possible to acquit such an offender, either because the offence of which they stand accused is, pursuant to the law, not a criminal offence because there was no willing act, or due to circumstances which exclude guilt or criminal culpability.
Decreasing understanding and ability to control can be linked to various medical and non-medical conditions. In other words, even in everyday terms, insanity cannot be linked only to illness, which can be tested with cases of neurological disorders, personal disorders, outbursts and altered states of consciousness. Likewise, criminal policy cannot absolve from guilt all medically established conditions characterised by a lack of willingness to act, which is true, in particular, in cases of addictions to psychoactive substances or alcohol, as well as acute intoxications. Comparative law shows that criminal policies do not absolve from guilt in particular acute intoxications, even if psychiatrists find that the ability to understand and control actions did not exist.
The conclusion of the thesis is that a solution for the outlined issue should be first and foremost established by the criminal policy regarding who should be absolved from guilt. As a part of criminal policy the legislator grants the absolution from guilt for whatever reasons. Such a policy should provide a well-thought-through decision that is based on the doctrine about who should be absolved from guilt. Undoubtedly, absolution from guilt should be granted to the mentally ill who, because of their illness, cannot understand the meaning of their actions and are unable to control them at the time of committing a criminal offence. This has been the case since classical antiquity. However, the described basic outline is rather too elementary today and calls for an in-depth and, on every occasion, dynamic criminal policy decision about who the offenders are that can be absolved from guilt for a comparable reason. The criminal policy decision cannot be exclusively linked to the findings of medicine and psychiatrists about conditions which are medically classified as a lack of willingness to act. This is then uncritically accepted in the normative definition of the biological criterion for the establishment of insanity. The criminal policy decision about absolution from guilt cannot waive its own, sovereign assessment of conditions, even though medically substantiated, that can be granted absolution from guilt. The conformist criminal policy position that the decision about the biological criterion is left to the International Classification of Diseases and the psychiatric classification of offenders in Chapter F is wrong from the point of view of the doctrine and has resulted in a number of inadequate solutions in case law. In practice this means that the institute of insanity is utilised for each criminal case where the question is posed as to whether the actions were understood and controlled, even due to the fact that a very grave criminal offence is at issue. Courts appoint psychiatrists as expert witnesses in an excessive manner and without legal basis. Pursuant to the Criminal Procedure Act in the Republic of Slovenia, it is only possible to appoint a psychiatrist when the court has doubts regarding sanity, in other words regarding the existence of a biological criterion (mental disorder), which at the time when the offence was committed influenced the understanding and control, and not just in case of or due to difficulties in assessing socially and ethically excessive behaviour. Appointing expert witnesses more than is necessary is manifested in decisions which link insanity, usually as significant mental impairment, to subjective signs of alleged criminal offences in factual situations of entirely healthy offenders. The most critical is the situation with acute conditions of intoxications. The insanity plea is used for a number of unresolved issues related to a lack of willingness to act. This issue may be adequately addressed by the doctrine, but it definitely requires better solutions in terms of criminal policy, as well as in normative terms.
The solution for this issue lies in the field of criminal policy. The doctrine, which fails to adequately specify the sliding of a willingness to act over normative institutes, is not normatively recognised. The courts are left with the assessment at the rigid axis of existence or non-existence of a willingness to act. In this basic field of doctrine there is a palette of factual situations and subjectively relevant circumstances: mental illness (in dark and lucid stages), other illnesses which can also have a legally relevant influence on a willingness to act, as well as personality disorders that, at the time of outbursts, cancel out the willingness to act. In the normative derivation of the rigid doctrine all the aforementioned cases, with the assistance of psychiatrists appointed as expert witnesses, in practice in an unlawful and malign manner become linked to the institute of insanity, exclusively in order to meet the need to punish. This is not a criticism of psychiatric expert witnesses - medical doctors do not impose punishment or decide about criminal liability, they only present their report and put forward their opinion. The decision in the field of criminal policy has to be about who should be absolved from guilt and this is actually not linked to the reports of psychiatric expert witnesses. Pursuant to a laconic definition of a willingness to act the legislator is the one to determine the adequate formula deciding who is absolved from guilt and who is not. There is no doubt that the mentally ill who commit a criminal offence during a dark moment fall into that category. But the rules need to be put in place also for all other various situations, including those when the willingness to act is non-existent, for example in cases of acute alcohol intoxication, however, this is not permissible in terms of criminal policy. Equally, it is necessary to allow for some situations to have insanity recognised, although mental disorder is not at issue.
With the assistance of psychiatric expert witnesses the normative limitation of the biological criterion to mental illnesses has been broadened in case law. Considering the current arrangements this seems useful, since the courts would otherwise be put into the position of having to establish decreasing understanding and control in relation to the institute of guilt by themselves, although they have the same starting point regarding the understanding of other biological influences, i.e. a lack of adequate knowledge about the biological mechanism of decreasing understanding and control of actions. This refers only to the understanding of the biological criterion which the court could only, on the basis of an adequate expert witness report, classify in the initial theoretical legal requirement of criminal liability regarding the understanding and control of actions, and before that in the implied free will. The court faces this issue in concrete factual situations, in the assessment of actions by an individual offender. In these assessments the complex doctrinal debates about free will are practically entirely equal. The adequate solution of the present problem first lies with the legislator who should decide who can be granted absolution from guilt, and why, regardless of theoretically unresolved and contentious issues substantiating the doctrinal institute of insanity. From a practical point of view the legislator is the one to tell and delimit the actions of a mentally ill person, an acutely intoxicated person and a person deprived of free will by taking the normative decision as to who should be absolved from guilt and why. There is no reason, however, that every lack of willingness to act, be it socially or medically conditioned, would a priori represent the basis for absolution from guilt. Among the offenders of socially undesirable actions are relevant differences from the legal and political point of view. The offender who committed manslaughter (e.g. paranoid schizophrenia) while having lost contact with reality due to a lack of control, which is understandable in lay and criminal law terms, has to be, by the legislator, set apart from offenders who do not have the same criminal law reason, because they either have only a personality disorder, are short-tempered, or under certain circumstances acted unreasonably despite being reasonable persons, got drunk, were under the influence of substances or reacted disproportionately to excessive provocations (outbursts). In particular, extreme temperamental actions should be understood as such and be normatively recognised already in the normative institutes of extenuating circumstances and not in the institute of insanity. Insanity should be addressed in its original concept, i.e. in the case of offenders who are not criminally liable for a normatively excusable reason of mental illness. The legislator is the one to first clearly define in criminal policy who can be granted absolution from guilt and why, as well as who cannot be absolved from guilt and why. From the point of view of case law it is most definitely first necessary to abandon the dogmatic and outdated institutes, which have been used in case law for centuries in a syllogism of addressing absolutions from guilt only at the formal level, for example the institute of actio libera in causa.
From the doctrinal point of view, it is rather difficult to mirror insanity in other situations characterised by a decreasing will to act, while from the criminal policy and normative point of view that is easier. In criminal policy terms the decision is about absolutions from guilt, who can receive them, when and why. Should a drunk driver who, in a traffic accident, causes the deaths of several persons be absolved from guilt, should the same be granted to an offender with a personality disorder whose fiery temper is unpredictably and excessively manifested due to any stimulus, the offender who is under the influence of psychoactive substances and kills a policeman during a regular traffic check, or the offender suffering from a neurological disorder who commits manslaughter? All these situations are characterised by a lack of willingness to act, however, looking at comparative law (e.g. France, the UK) in criminal policy terms they are not always absolved from guilt, in particular not in the case of intoxications. The solution regarding a lack of willingness to act is resolved there by abandoning the biological criterion and putting emphasis on the psychological one. In the UK, a solution has been put in place which broadens the contents of the biological criterion. The Law Commission in a discussion paper proposes that first the term “insanity” be replaced by “not responsible by reason of recognised medical condition”. The committee clearly delineates the establishment of “medical condition”, which is not linked anymore to predetermined medical indications, and “recognition”, which is the assessment of the court (psychological criterion). In my opinion this is the most progressive solution. In the quoted paper the committee extensively discusses the recognised personality disorders, which is based on the assumption that there is no sharp divide between mental health disorders and personality disorders and that this is not the decisive factor, since the proposed solution (recognised medical condition) is not based on the establishment of mental health or personality disorders. In this sense, a personality disorder characterised by a lack of understanding and lack of control over one’s actions may be classified as a recognised medical condition. In the UK, the solution is left to the court to decide on the recognisability of relevant medical conditions. The legislator is not supposed to decide on it anymore.
The assessment regarding a willingness to act would thus be, to a greater extent, left to the judges. In terms of criminal policy and in normative terms a looser formula is needed, however, that does not mean there should be complete discretion. From the criminal policy point of view it would be useful to decide who can be absolved from guilt (e.g. can a person with a long-term history of alcohol abuse be granted absolution from guilt), by using a formula that will, in a normatively clear way, define acts detrimental to society, absolutions from guilt and sanctions. This cannot be solved by using the institute of insanity, as it is not intended for that purpose.
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