Criminal Responsibility and 1Hental Illness
- VHITLOCK, o'. A
- (l.ondon: Butterworths,
The history of Anglo-American attitudes regarding the criminal responsibility of the insane is characterized by a resonance between the wish to punish and the willh to protect and treat. The present state of the legal machinery for dealing with the insane is, on almost all levels, a source of dissatisfaction, confusion and controversy. I propose to review the history of our present laws, with the belief that a more thorough understanding of their historical vicissitudes may allow for a stabilizing influence on future legal changes and will highlight the problems requiring attention from behavioral scientists. Anglo-American law is largely rooted in the Judaic-Christian traditions and principles. Jewish law, stemming from the time of I\'foses, was traditional and verbal. It was first written about the second century by the scholar known as "Rabbi" or Judah the Prince. Throughout the AI ishnah, as this body of law is called, there is a consistent grouping of the imbecile (insane), the minor and the deaf-mute. l "It is an ill thing to knock against a deaf-mute, an imbecile. or a minor: He that wounds them is culpable, but if they wound others they are not culpable.2 •.• For with them only the act is of consequence while the intention is of no consequence."3 This reference to the intention behind the act relates to the earliest biblical reference to the principle determining our current legal irresponsibility of the insane. "And this is the case of the manslayer ... whoso killeth his neighbor unawares, and hated him not in time past; as when a man goeth into the forest with his neighbor to hew wood ... [and accidentally kills him] ... hc is not worthy of dcath inasmuch as hc hated him not in time past."~ Thus the biblical injunction is that the absencc of malice or intent exempts the "manslayer" from criminal punishment, Another biblical reference that would seem to relate to this. although not mcntioned in discussions of the problcm, are the words uttered by Jesus. "Forgive them, Father. for they know not what they do."5 Fcw outside the legal profession realize that therc is more than onc body of law relating to crime. Statutory law is that law which is legislated by governmental bodies. while the common law is the "unwritten law of England. administered by thc King's courts, based on ancient and universal usage, and embodied in the commcntaries and court cases."6 In effect, thc law that develops from the accumulation of decisions and interpretatiollS by the judges in indi\'idual cases. In Amcrica it is also referrcd to as case law. It is in this body of law that legal precedent has maximum weight. The principles g(l\'crning the status of the insanc originated in the common law. A common law crime consists of a criminal act and a criminal intcnt. In thc absence of either, there is no common law crime. This contrasts with statutory crimes. which may consist only of a criminal act. Statutory rape is an cxample of a statutory crime in which the intent is completely irrelevant.