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The Rules on Legal Insanity: A Debate

Legg inn «Avdeling / enhet» på hver side: 1 Gå til menyen «Sett inn» 2 Velg: Dato og klokkeslett 3 Skriv navn på avdeling eller enhet i feltet «Bunntekst» 4 Velg «Bruk på alle". The Rules on Legal Insanity: A Debate. Linda Gröning linda.groning@jur.uib.no.

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The Rules on Legal Insanity: A Debate

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  1. Legg inn«Avdeling / enhet» på hver side:1 Gå til menyen «Sett inn»2 Velg: Dato og klokkeslett3 Skriv navn på avdeling eller enhet i feltet «Bunntekst» 4 Velg «Bruk på alle" The Functionality of the Criminal Justice System, research project at the Faculty of Law, funded by Bergen Research Foundation The Rules on Legal Insanity: A Debate Linda Gröning linda.groning@jur.uib.no

  2. Avdeling / enhet Current Regulation in the General Civil Penal Code Section 44: A person who was psychotic or unconscious at the time of committing the act should not be liable to a penalty. The same applies to a person who at the time of committing the act was mentally retarded to a high degree.

  3. Avdeling / enhet Legal Sanity • Sanity is a condition for criminalresponsibility • The rulesofthecriminallawdoes not definesanity – butonlythoseconditionsthatnegatesanity • In the legal discourse, sanity is explained as ’skyldevne’ – abilityofguilt/capacity to criminalresponsibility/criminalcapacity

  4. Avdeling / enhet The Sane and Responsible Person: Basic Premises • The concept of criminal responsibility is constructed for moral and legal purposes • It is based upon certain metaphysical premises: • Freedom: the responsible agent acts voluntary • Rationality: the responsible agent is capable to understand and reason about his actions in a given context

  5. Avdeling / enhet Towards Concretisation • Overall biological/psychological aspects required for criminal capacity: • Ability of correct sensation and perception of the world • Ability of correct conceptualisation and interpretation of the world • Ability of practical judgment on how to act

  6. Avdeling / enhet Legal Insanity • Mental disorder should not be equated with legal insanity • Serious deficiences are required that makes it unreasonable to blame the defendant • Deficiences that affect the defendants’ ability to understand the world correctly • Problematic issues?: • Mental disorder and control deficits • Mental disorder and empathy deficits

  7. Avdeling / enhet From Concepts to Rules: Some Basic Premises • Different legitimate demands on a legal insanity rule: • Adequate delimitation of insanity • Practical for the system agents • Its consequenses should be justifiable • The specific character of law makes it difficult to perfectly fulfil all these demands

  8. Avdeling / enhet Central Legislative Considerations • A legal insanity rule may be constructed in many different ways • Two ideal type models: • The medical model • The mixed model • The dichotomy between the models should not be exaggerated

  9. Avdeling / enhet An Adequate Delimitation of Insanity • The mixed model is often argued as being preferrable • By connecting the mental disorder to the act, it reflects the meaning of criminal responsibility • Arguments concerning the medical model: • Some medical conditions might correspond to insanity • The problem of flexibility? • Also the mixed model might be critisised

  10. Avdeling / enhet The Division between Experts and Judges • Criticism towards the medical model: • The current rule on legal insanity largely moves the decision into the diagnostic sphere • The experts involvement in legal assessments • Criticism towards the mixed model: • Difficulties in detecting the effects of a disorder in relation to an action • Objections regarding legal certainty and predictability

  11. Avdeling / enhet Consequences in the Reaction System • The problem with mental illness and suffering • The legal starting point: seriously mental ill people shall not be in prison • In any case, it shall be taken special regard to their health condition and needs • The possible mental suffering from detained people cannot justify a wider room for excuse • The access to adequate care must be realized as a right for the individual - across the distinctions in the reaction system

  12. Avdeling / enhet The Matter of Resources…

  13. Avdeling / enhet The Rules from a Society Perspective • A legal insanity rule must be considered in relation to the social function of the criminal law • The criminal justice system communicates, consolidates and creates certain societal attitudes • A legal insanity should not communicate messages that could create or support negative attitudes • The criminal justice system must, in order to secure trust, be responsive to the citizens’ attitudes

  14. Avdeling / enhet Thank you for your attention!

  15. Det Juridiske Fakultet

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