Responsibility and Risk: Mental Disorder in Criminal Law Symposium

Individual responsibility is a cornerstone of criminal law: under criminal law, persons are held accountable for their crimes, because they are deemed responsible for them. Moreover, crimes are sometimes seen as an indication for risk of future criminal behavior. Mental illness can challenge the assumption of individual responsibility and play a role in the assessment of risk. During a symposium co-organized by UCALL on 23 March 2023, we welcomed two speakers who discussed these problems from the perspective of Swedish and Norwegian criminal law.

The symposium was opened by Gerben Meynen, who is the principal investigator of a VICI research project on the Law and Ethics of Neurotechnology in Criminal Justice (LENC) and who co-organized the event. Meynen reiterated that jurisdictions have different approaches to dealing with the inevitable problem of mental illness in criminal law, making this a topic that especially benefits from international perspectives and comparative approaches. The two invited speakers provided such international perspectives for the Dutch audience at this symposium.

The problem of mentally ill defendants and ‘criminal insanity’

In many jurisdictions, legal insanity is a defense under criminal law. In certain circumstances, defendants who were mentally ill or mentally impaired at the time of the crime should be acquitted (i.e. not punished), because they cannot be held responsible for their actions. But the legal standard for legal insanity differs between jurisdictions. Some jurisdictions use a so-called ‘status approach’, which means that establishment of a (severe) mental illness during the crime by itself justifies acquittal. Other jurisdictions use an additional substantive test for legal insanity. For example, the German Criminal Code requires that the mentally ill defendant did not understand that what she was doing was unlawful, or that she did not have the ability to act in conformity with her understanding of unlawfulness. In Dutch Criminal Law, the test for legal insanity is unclear as the law does not stipulate a standard , which means that Dutch scholars can especially benefit from comparative perspectives.

A Norwegian Perspective

The first speaker at the symposium was Linda Gröning, who is a professor of Criminal Law at the University of Bergen in Norway, specializing in criminal law and mental health. She is also the principal investigator in the DIMENSIONS research project, which investigates legal insanity and psychosis. Gröning discussed recent reforms in Norwegian criminal law following the terrorist attacks on 22 July 2011, resulting in a new standard for legal insanity in Norway. Gröning also addressed the relationship between experts and judges in cases possibly involving legal insanity. An important issue in all jurisdictions is whether legal insanity is (more) a matter of clinical diagnosis by experts or (more) a matter of normative evaluation by judges. A key characteristic of the reformed Norwegian model is that legal insanity is exclusively identified with mental disorder: what matters is that the defendant was ‘sufficiently ill’ while committing the crime. Contrary to, for example, the German model, there is no evaluation of whether and how the disorder influenced the commission of the crime.

Is legal insanity (more) a matter for experts or (more) a matter for judges?

Lastly, Gröning talked about the Norwegian sentence of forvaring, which can be described as a punitive sentence, supplemented with preventive detention. Contrary to sentences such as the TBS order in the Netherlands and the Sicherungsverwahrung in Germany, this is not a purely preventive measure, but a punitive sanction. Forvaring can be imposed if a sentence of imprisonment is deemed insufficient to protect the life, health or freedom of other persons, the defendant is found guilty of having committed or attempted to commit an offence that has infringed upon the life, health or freedom of another person or put these legal interests at risk, and there is a risk that the defendant would again commit serious crimes.

A Swedish Perspective

The second speaker at the symposium was Susanna Radovic, who is a senior lecturer at the department of Philosophy, Linguistics and Theory of Science at the University of Gothenburg.  Radovic pointed out that contrary to Norwegian criminal law (and many other jurisdictions), Swedish criminal law does not have an insanity defense. The general rules on criminal responsibility apply equally to all. Defendants suffering from a mental illness are held accountable in the same way as defendants not suffering form a mental illness (except in rare cases where the mental illness has precluded mens rea). However, there is a differentiation in sanctions in the Swedish system. Radovic explained that perpetrators of serious crimes are sentenced to a sanction which can be either imprisonment or involuntary psychiatric treatment. Whether an offender is sentenced to psychiatric treatment depends on thetype and severity of the mental disorder, its relation to the crime, and the need for treatment rather than on whether certain cognitive and volitional requisites are met.

Swedish criminal law does not have an insanity defense

After discussing this Swedish model, Radovic focused specifically on the relevance of delusions for assessments of criminal responsibility. In some cases, criminal responsibility should arguably be established even though a defendant suffered from a delusion during the crime. Imagine the following example:   a defendant has attacked a victim, because she delusionally believed that the victim was wearing red trousers. Arguably, this could not be a successful defense because wearing red trousers does not justify an attack. This could be different in another case, where the defendant delusionally believed the victim was about to attack her and acted in delusional (putative) self-defense.

Delusions might pose an especially difficult problem for criminal responsibility when the content of the delusion has no equivalent in reality. How to deal with a defendant who delusionally believed their mother had turned into a monster? Or with the defendant who killed her children, delusionally believing this would save them from eternal torture? How should we assess the defendant who murdered someone, while delusionally believing this would save the world from alien invasion? Questions like these are hard to answer because positive law does not provide a framework for them. This is the case even if a jurisdiction has criteria for legal insanity.

Discussion

The presentations of the Norwegian and Swedish provided participants with valuable perspectives for a discussion on responsibility and risk. Meynen furthermore pointed out that neurotechnology plays an increasingly important role in criminal law and procedure, and is sometimes used to assess responsibility and risk. It is also interesting to see the interplay between life sentences and (purely) preventive and (purely) punitive sanctions in different jurisdictions, as well as in the case law of the European Court of Human Rights.

Responsibility and risk will continue to be challenging topics in criminal law. In the Netherlands, we are currently awaiting the Supreme Court’s judgement in the case against Thijs H. In this case, the defendant pleaded that he could not be held responsible for three murders because they were committed out of a psychotic episode, but the Court of Appeal sentenced him to 22 years in prison as well as a TBS order (preventive detention). This case is important because it has made clear that the Netherlands are lacking a criterion for legal insanity. Surely, the awaited judgment will offer new a new impetus for discussion on this topic.

The symposium was organized by Gerben Meynen, Johannes Bijlsma, Ferry de Jong, and Esther Nauta. It was funded by UCALL and the LENC-project.