When 'madness' meets the law

30 May 2012

It's a common perception that people 'get away' with crimes by pleading insanity but no one walks off scot free, says Dr Arlie Loughnan.
It's a common perception that people 'get away' with crimes by pleading insanity but no one walks off scot free, says Dr Arlie Loughnan.

Australian society's recent progress in acknowledging and understanding mental illness is yet to find its way to the criminal justice system, a University of Sydney law lecturer says.

Dr Arlie Loughnan is a senior lecturer at the Sydney Law School whose new book Manifest Madness: Mental Incapacity in Criminal Law (Oxford University Press) examines the intersection of crime and mental health. Looking at the relationship between the law, legal practices and knowledge about mental incapacity, she suggests a more constructive approach to dealing with the mentally unwell when they face criminal charges.

Although written for academics and criminal lawyers, Dr Loughnan says the book addresses issues relevant across society.

"It's a common perception that a lot of people 'get away' with crimes by pleading insanity," she says.

"But studies suggest such pleas are rarely successful in Australian courts and the few successful ones, a handful a year in relation to serious charges, are not a back door exit. A not guilty by reason of insanity finding is a special verdict, giving the court other powers to seek advice for treatment of the defendant or an assessment of how dangerous they are. No one walks off scot free."

The attitudes and beliefs of lay jurors towards mental illness need closer scrutiny, says Dr Loughnan. Manifest Madness refers to data from the Unites States where frequent changes to criminal laws governing mental incapacity (in NSW such laws date from 19th century English law) have not altered the success rates of insanity pleas. "People may employ their lay knowledge of mental incapacity, and their findings as jurors are often not determined by legal tests."

According to Dr Loughnan: "As the stigma attached to mental illness reduces we need to better understand this reluctance. Where crime is a symptom of disorder, it is better to deal with the disorder than with what might be a symptom of the offending."

Drawing on historical research and legal theory, Manifest Madness challenges various orthodoxies in criminal law scholarship, and reconceptualises the relationship between the criminal law and forms of mental incapacity. The book casts new light on established topics at a time when law reform agencies, in this country and elsewhere, are turning their attentions to this part of the criminal law. This takes her beyond a study of the 'defence of insanity' to consider a wider range of doctrines including infancy and intoxication, infanticide and diminished responsibility.

Dr Loughnan's book also examines the conflict between lawyers and medical practitioners when identifying and dealing with mental incapacity in court, often described as a turf war. "When determining someone's mental fitness psychiatrists say it's a psychiatric question," she says. "Lawyers say the question is a legal one: whether someone had the capacity to be convicted of an offence at the time of the offence. The law is the rather messy and controversial product of that tension.

"A country without the adversarial system, such as that in Norway where mass-killer Anders Breivik is being tried, might alleviate this tension. Norway relies on a civil law tradition where all expert witnesses report to the court rather than being called by either the defence or the prosecution."

The Australian launch for Manifest Madness will be held at the University on 29 May.

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