Is Diminished Responsibility Relevant?

Is Diminished Responsibility (Diminished Capacity) relevant today? Are those jurisdictions that have abolished this defence harsh and unreasonable ?

Brian Boettcher

Diminished Responsibility (In the USA it is called Diminished Capacity) is used to reduce the charge of Murder to Manslaughter thus allowing the judge more discretion in sentencing. To many the idea of a person having diminished responsibility to a crime is a problem at an emotional and rational level : after all we often do not agree what the mind is !

Some see the defence as a conspiracy of the legal and medical professions to release increasingly guilty offenders into the community and that this conspiracy is driven by money and socialists. Victims and their relatives certainly take a dim view of the mental defences and see society in terms of becoming increasingly lawless and heading for Armageddon . Philosophers and theologians point out that we really know very little about anything, and what is truth anyway ?

Moore in Act and crime discusses the connection of Volition and Act and whether in fact volitions are an essential source of action . " If however, volition is taken to refer to a faculty of will that as an object causes bodily movements, then we must think that person possesses a kind of unique causal power." 1 That is, is there a sort of desire or wish? However there is the problem of whether volition is an active state in the mind or whether it is a mental state, like a thought , that just comes to one. Moore puts it as "Volitions are simply the last executors both of our more general intentions and of the background states of desire and belief that those more general intentions themselves execute." 2 . This does not consider the connections between the object of the volitions and the mind. Moore also points out the various ways of looking at these connections and intent. The arguments against the existence of volitions is strong and the question as to whether they exist or not is not answered. The Actus Reus requirement of the Criminal Law is a complex act, and the border with the Mens Rea and Actus Reus is blurred because it is difficult to see where in fact the border is, due to the intimate and necessary connection between them both. Also there is the issue that the Actus Reus has it's own mental element , namely that there be the necessary will to commit the offence. Mens Rea intention though is a sort of volition and is different in that there are more subdivisions within it . There is also the matter of this particular intention not being from simply objects but for the complex objects of some criminal statute. Negligence is a problematic area and also causes heart-ache to the theorists and in law is classed as a fault element. The important practical matter though is how the judge and jury will view a particular case - theory then becomes a minor issue as subjective judgment decides the issue. The law sees the Mens Rea in its technical meaning and "refers to whatever state of mind is required by the offence." 3

These theoretical and practical issues have upset feminists who see such matters as the battered woman syndrome as being originally more involved with diminished responsibility, as well as the more obvious use in provocation. Stubbs / Tolmie say "Our concerns seem to have some foundation as evidenced by the number of cases in which the battered woman syndrome has been used to support a manslaughter conviction,or in mitigation of sentence in circumstances where a complete acquittal may have been more appropriate . There are few cases where the judge has given us any insight into the impact of testimony concerning the battered woman syndrome on their reasoning , and in the remaining cases we can but speculate as to what the outcome might have been in the absence of such evidence " 4

There is then a natural tension that develops between the theory and the practice and only at times does the theory seem to agree with the practice . This state of affairs is probably seen more often in law than other disciplines as there is a greater tendency to manipulate the available evidence to the edge of what is known as the rules of evidence , especially in serious crime where there is much at stake. This edge will then become a part of social discourse about the law and about such issues as diminished responsibility , which may then influence the development of the law further. In this hot-house atmosphere whether or not we know philosophically what an act is enters the debate only at the edges. Episodically, in most countries, there is an outburst about a particular case when Murder is reduced to manslaughter. Such an outcry occurred in the case of Mr A in Australia . But when one finds out the facts of the case the decision of the jury to award him Diminished Responsibility make a great deal of sense and displays the need for this merciful function with in the law. His psychiatrist felt that this 27 year old man had a history of an abused and traumatic upbringing by an alcoholic and depressed mother and a step father who he saw as a violent and sadistic homosexual paedophile and who constantly put him down and was violent to his mother. Mr A believed that his step-father sexually abused him as a child. There have been about three suicide attempts by A over the years, the last one requiring admission to a Psychiatric Hospital. He has been left with a feeling of rejection and extremely low self-esteem and has the characteristics of a Borderline Personality Disorder with depressive symptoms. That is, he has low self esteem , poor self image, unstable interpersonal relationships , and impulsivity especially involving self-damaging activity and is very sensitive to any suggestion of rejection. People with this disorder are also unstable in their mood - there are chronic feelings of emptiness and they are prone to paranoid feelings and dissociative symptoms such as feelings of unreality and at times a total break with reality which is what Mr A experienced at the time that he killed his step father, plus the psychotic delusions and hallucinations that he was suffering from. These delusions and hallucinations stemmed from an Amphetamine-induced Psychotic Disorder which can last for a month or more after the use of Amphetamines has stopped. In this condition the delusions and hallucinations are often marked. This is a recognised psychiatric condiition. The psychiatrist went on to say that he believed that there has been an accumulative provocation (emotional battering) over many years of A by his step father . This provocation was enough to reduce his judgment and made it difficult to distinguish whether it was right or wrong to protect his mother and brother and gain retribution from killing the deceased. It also reduced his ability to exercise will power in this matter and control his actions in accordance with rational judgment. The psychiatrist believed also that he was suffering from an abnormality of the mind in that he was suffering from two significant psychiatric conditions, namely Borderline Personality Disorder and Amphetamine-induced Psychotic Disorder. The former would not necessarily be enough to consider the partial defence of Diminished Responsibility but that when the two occur, as they do here, Diminished Responsibility may be seen as reasonable by the court and that he was substantially impaired in his mental responsibility as a result.

It was also suggested that Mr A was also extremely depressed but that the other conditions produced symptoms that make it difficult to judge whether the symptoms of depression were being produced by the psychosis that amphetamine produces or by other factors. One could say though that there were severe depressive symptoms present. Mr A's depression was worsened by the loss of his job, a psychiatrist cancelling his appointment which was just another rejection by a significant person in his eyes, and by him being told to get out of where he was living. He had been chronically depressed and suicidal before this, but in addition to the depression was the complication , or sequelae, of the use of Amphetamine (Speed) because after the high that comes with the use of speed comes the depression that is usually referred as the ` downer '. These psychiatric disorders that occurred after the use of amphetamine are not part of the intoxication symptoms and are not well recognised by the average person in the street and were not part of the reasonably foreseeable risks of taking the Amphetamine, so it seemed to the psychiatrist ( but of course he pointed out that this is an ultimate question for the court).

The depression that he suffered from would have also made his ability to control his reaction to provocation more difficult . In saying all this the psychiatrist said he was keeping in mind that abnormality of mind is to be 'wide enough to cover the mind's activities in all aspects, not only the perception of physical acts and matters, and the ability to form rational judgment as to whether an act is right or wrong , but also the ability to exercise will power to control physical acts in accordance with rational judgment.' 5 In the Judgment His Honour said that " the jury in determining that the prisoner was guilty of manslaughter and not murder obviously found that the killing of ........ ....... arose because of provocation on the part of the deceased, because at the time of the slaying the prisoner's responsibility for his act, in terms of the law, was diminished. "6 Three psychiatrists gave evidence, all experienced in forensic psychiatry . Two thought there was Diminished Responsibility and possibly Provocation as required in Law and the psychiatrist for the prosecution did not think there was either. One psychiatrist for the defence thought that there was Depression, Borderline Personality Disorder with Dissociation, Drug induced Psychosis and Post Traumatic Stress Disorder. The other psychiatrist for the defence thought there was Depression , Drug Induced Psychosis and Borderline Personality but commented that he put little weight on personality disorder in isolation. The prosecution Psychiatrist thought there was Depression present . The judge commented that " the prisoner's upbringing was in circumstances of urban hell ". He went on to say " Whether or not the jury accepted the prisoner's account of being in a disassociated state at the time of both the planning and completing of the slaying of the deceased , they either found that he so lost self-control because of the past conduct of the deceased towards himself and other members of his family or that his psychiatric problems had so overtaken him as to disinhibit him to the extent that he committed the lethal act." He went on to agree that the objective criminal responsibility of the accused for his action is much the same when viewed from either the standpoint of Provocation or Diminished Responsibility. The decision to accept these two defences involves being highly subjective and value judgmental . The guideline for the standard of proof when it came to questions of the accused's responsibility for the act had been laid out clearly for the jury by the judge , that is, on the balance of probabilities . The defence simply had to raise reasonable doubt in the mind of the jury members. He was given 7 years in gaol and had to serve 3 years starting from the time of his detention . Had the prison authorities listened to several of the psychiatrists and a prison psychologist who warned them very clearly that he was suicidal he would not have been much opportunity of suicide but as soon as he was transferred to a country prison immediately after the trial, he committed suicide .

There can be little doubt that there is a need for some reform from the comments of judges in Australia and from the public outcry when the media sensationalise a murderer " going free" . Usually when the full facts are known the outcome of the trial is very sensible . In Australia the most obvious suggestion is to do away with the offence of murder and replace it with Unlawful Homicide . The jury or judge would simply be required to decide whether the murder occurred and as there would not be legislated sentence the judge would then take evidence of diminished responsibility or any other mitigating circumstances into account when deciding the sentence . The problem is that society would not accept this at this time in our development of social conscience in Australia as many people like the idea of a person who kills with the required intent to carry the label of murderer for the rest of their life . There is little sympathy in society for such people and society guards the use of the label of murder as closely as they guard the concept of jury.

The next suggestion that has been floated is the idea of simply abolishing the diminished responsibility defence altogether . The mental state would then be transferred to the Mens Rea element and intent. However this does not allow comment on the ultimate issue which is for the judge or jury alone and it is very difficult to see the free flowing discussion and cross-examination without going into the ultimate issue question with the psychiatrist. There is also the problem that one can easily have intent and yet be quite disturbed, but at the same time not reach the level required in the insanity defence. One can form the intent to kill someone very clearly and have definite intent yet be quite mad . It is the reasons behind the intent that are important in the question of diminished responsibility. In Montana and some other states in the U.S. the concept of diminished capacity has been statutorily abolished. That is, insanity and competence are not recognised as components in guilt or innocence. Psychiatric testimony is still used but official psychiatric evaluations are limited to the defendant's competence to assist in his defence. If he is found not to be thus competent, he is remanded to the State Hospital for treatment. Interestingly the State Hospital takes the position that it cannot force such a patient to undergo treatment. The administrator of the State Hospital in US has, however, caved in to at least one judge's demand that a defendant be treated due to the threat of spending the night in custody after a contempt charge was laid. On talking to psychiatrists in these states it seems they believe that this system has worked well enough. They feel the judges and prosecuting attorneys appear to have a good grasp of what does and does not constitute impairment, and thus the flexibility necessary in this system for the merciful function in the law remains mainly in the pretrial manoeuvrings. Could such a system could be successfully replicated outside a conservative, sparsely-populated jurisdiction such as Montana, which had, at the time of writing this, two credentialled forensic psychiatrists? They also commented that they have had a problem in the US with not only Personality Disorder defences and Multiple Personality Disorder defences, but Diminished Capacity claims based on alleged histories of "abuse." Curiously, the public has become disgusted with both the criminal justice system and psychiatric testimony, while at the same time finding itself unable, in the jury format, to convict defendants in high-profile cases who raise these defences with sufficient legal firepower. No such problems have arisen in Montana in the years since the Montana legislature did away with the non compos mentis plea. The elimination of Personality Disorder would not, based on US experience, accomplish much and they thought that such suggestions underestimate the cleverness of lawyers! 7 This sort of approach seems to me to be a backward step as it opens the door to the influences of class ,racism , and gender bias all outside the eyes of the public and in the secrecy of pretrial negotiations . It has been a forward step to get these matters into due process and that is where it should stay , that is in the hands of judges and juries. In fact many people seem to feel that even leaving it to the sentencing is not enough and are not in favour of leaving the matter in the hands of lawyers ,even if it is a judge. I gather Personality Disorder has been elimated from the accepted psychiatric disorders for Diminished Capacity in Oregon.

In the UK, the law revision committee concluded that "even if the mandatory life sentence for murder was abolished , diminished responsibility should remain. There were a number of reasons for this : - the judge should have the guidance of the jury about the defendant's culpability when deciding on the appropriate sentence ; - juries might be reluctant to convict someone for murder , particularly in cases where the person has aroused their sympathy - giving the jury the choice of only murder or acquittal might lead to unmerited acquittals , - the special stigma attached to murder; - public acceptance of lenient sentences is greater where the jury returns a manslaughter verdict rather than a murder verdict."8

There has been the suggestion that insanity in the law should be widened but there is a difference between how someone who has passed the rather tougher standards of proof for insanity is to be treated and the need to treat lesser degrees of insanity in a different way. The ambit of insanity is wide, but diminished does not need to be that wide and encompass all crime as insanity does. In the Australian State of South Australia there is a draft bill out that separates the mental elements and objective elements to have a separate finding for each9 . The relevant part of this is Part 8 A , Mental Impairment which states " mental impairment includes senility , intellectual disability, mental illness and severe personality disorder ". It has been pointed out to the legislators that they had better at least double the bed state of the current psychiatric hospitals and halve the goal population if this was adopted . The Division 2 covers Mental Competence : "Section 269C - A person is mentally incompetent to commit an offence if at the time of the alleged conduct to give rise to the offence , the person is suffering from a mental impairment and in consequence of the mental impairment _ (a) does not know the nature or quality of the conduct ; or (b) does not know that the conduct is wrong ( that is he or she is unable to reason with a moderate degree of sense and composure about the wrongness of the conduct as perceived by reasonable people ) ; or (c) is unable to control his conduct. "

The balance of probabilities is the standard of proof and if found impaired then they are to go under supervision. This is clearly too wide an ambit in terms of offences and psychiatric conditions to be taken seriously . Lawyers will very likely also find it problematic for purely legal reasons . It seems that the major problem with the present arrangement for Diminished Responsibility is in the words that psychiatry uses and the words that law uses use and this could be overcome by redefining this defence in the statutes . The other problem area is that some of the disorders in psychiatry are not enough to merit this defence for such a serious crime and they should be removed from use in this defence. I believe that this especially applies to Personality Disorder for the following reasons : - it is not treatable - we all have some sort of personality problems and we are generally able control these, so people are not accepting of this as an excuse - It can be easily feigned eg Multiple personality disorder being induced by therapists or deliberate conscious feigning. - some of the more extreme personality disorders are very dangerous , for example , sexual psychopath. There is confounding evidence coming to light that there is in fact an organically recognisable difference in the frontal lobes of psychopaths on EEG and special SPECT scans of the head which may mean that this condition merits special attention in the law . There is a move in Australia to find a more rational, practical and generally applicable mental health law suggesting that " special mental health laws be replaced by generic protection and prevention legislation ".10 Also there is the suggestion of " guardianship law which is non-discriminatory and which intervenes according to need rather than diagnostic classification." 11 These concepts are still in the discussion stage and may only be applicable to insanity in any case . It seems that some psychiatrists who have had forensic training do not find any difficulty with the present law but when pressed agree that the exclusion of personality disorder from the defence would be a good thing . ( this suggeastion was made by me before I heard of the Oregan exclusion of Personality Disorder) Notwithstanding this it seems the the language needs improving and may be worded as follows :

Diminished Responsibility occurs when a person commits a unlawful homicide and are suffering from a serious and recognised psychiatric disorder ( with the exception of personality disorder) which is of a temporary nature, but may be one episode in a chronic illness and the offence occurs as a result of this psychiatric disorder .There has to be concomitant serious impairment of cognition and/or judgment and /or affect , at the time of the offence due to the psychiatric disorder which led to strong and substantial reduction of responsibility and culpability. Personality disorder by itself is not enough and must have some other serious and recognised psychiatric disorder as well . If the Jury is convinced that all these conditions are met on the balance of probabilities then the charge of murder is to be reduced to manslaughter. I would foresee that the reverse onus of proof should stay and that it would be up to the defendant to prove that he was impaired at the time of the offence, then for the prosecution to displace this defence (once it is set up by the defendant ) beyond reasonable doubt.

The separation of personality disorder from other disorders is not unreasonable when one considers that personality disorder is merely a consistent pattern of neurotic traits grouped together, as the neurotic turmoil of adolescence settles and these traits precipitate out to form the personality disorder. This grouping is not serious enough to be an excuse for killing, it seems, even when it is quite a disturbing disorder to the person who has it. If it gets to trigger another and more serious disorder (such as a psychosis) then the whole picture changes .

It may be that better use could be made of the considerable expertise that has developed in the NSW Mental Health Review Tribunal ( in Australia ) and that instead of a jury being faced with these issues involving the confusing interface between the law and psychiatry, the question of whether there is a diminished responsibility defence could be referred to this body but I suspect that society's faith in the jury system would prevent this. The problem that has developed concerning Diminished Responsibility is not about the basic concept because most people agree with it when it is really used in the role of the merciful function of the law in cases deserving of this as it has developed historically . The problem has been when it is used in cases where there is some doubt as to the culpability of the offender and where society views that it has been incorrectly used . The law simply needs tightening so the only people who are truly suffering from a psychiatric condition through no fault of their own and who are not responsible for their actions in committing killing are not found guilty of murder. Only if it is working well in such unlawful homicide , it seems, would society accept the widening of the ambit of Diminished Responsibility to cover other offences. It is doubtful that society would want to see the jury removed from these decisions . In order to achieve this tightening, the words that define it need to be markedly improved . Jurisdictions that have abolished it or tried to replace it have ended up with more confusing and perhaps more unjust arrangement in order to accommodate this function . This was the situation in the Christian S case in California where it was " made clear that imperfect self defence remains a defence in California " and also that " Mental illness or intoxication no longer allows for murder to be reduced to Voluntary manslaughter in diminished capacity cases since " intent unlawfully to kill " is sufficient for express malice and murder . Therefore diminished capacity actuality in California can reduce murder to involuntary manslaughter. " 12

This twisting and turning is a feature of those jurisdictions where there has been an attempt to get rid of Diminished Responsibility, and this should be a lesson learnt for those fortunate enough to have retained it. However, " until changes are made in the law or the legal process the onus must remain on psychiatrists , the courts and the lawyers to do all they can to remedy the deficiencies of the present system ." 13


1 Moore M (1993), Act and Crime . Clarendon Press , Oxford P 113

2 Ibid No 1 p 121

3 Bluglass R, Bowden P, Walker N (1990). Principles and Practice of Forensic Psychiatry , Churchill Livingstone London. p238.

4 Stubbs J, Tolmie J," Battered Woman Syndrome in Australia : A Challenge to Gender Bias in the Law " ,Woman , Male Violence and the Law , The Institute of Criminology Monograph Series No 6 , Sydney

5 R v Byrne [1960] 2 QB 396, 403-405 ( Eng CCA ) and extracted form file of R v Mark Anthony

6 Judgment of Newman J , Friday 23 September. N S W Criminal Courts .

7 Personal conversation with Dr John Mendenhall, MD ( via e-mail ) Psychiatric Association of Great Falls 2800 11th Ave South #23 Great Falls, MT 59404

8 Victorian Law Reform Commission (Australia) , Report No 34

9 Draft of the Criminal law Consolidation ( Mental Impairment ) Amendment Bill (No 1) 1994 . South Australian State Government .

10 Ibid No 53

11 Campbell D T , " Mental Health Law: Institutionalised Discrimination " Australian and New Zealand Journal of Psychiatry 1994 ,Vol 28, No 4 P554

12 Roseman S, "Mental Health Law : an idea whose time has passed " Australian and New Zealand Journal of Psychiatry 1994 Vol 28, No4 P 560

13 Weinstock R , " Retention of Imperfect Self- Defense In California Diminished Capacity despite Elimination of Diminished Capacty " Newsletter AAPL , Vol 19 No3 , December 1994 p57

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