INSANITY

in criminal law, condition of mental disorder or mental defect that relieves a person of criminal responsibility for his conduct. Tests of insanity used in law are not intended to be scientific definitions of mental disorder; rather, they are expected to identify persons whose incapacity is of such character and extent that criminal responsibility should be denied on grounds of social expediency and justice. Various legal tests of insanity have been put forward, none of which has escaped criticism. Anglo-American systems, including that of India, base the law of criminal responsibility primarily on the famous case of M'Naghten. In that case (1843) the English judges held that to establish a defense of insanity, it must be clearly proved that, at the time of committing the act, the party accused was labouring under such a defect of reason, from disease of mind, as not to know the nature and quality of the act he was doing; or if he did know it, that he did not know he was doing what was wrong. Some U.S. courts went further and also relieved from responsibility one moved by an irresistible impulse. These rules have been the object of sharp controversy. Critics charge that they express an overintellectualized concept of mental disorder, reflecting outmoded notions of human behaviour. The rules have been criticized as not being based on modern concepts of medical science, thus complicating the work of the psychiatrist in giving expert testimony. The 1954 decision of Durham v. United States promulgated a new rule: simply that an accused is not criminally responsible if his unlawful act was the product of mental disease or mental defect. In simplicity, this test resembles the Japanese: An act of an insane person is not punishable. Such a rule has been supported by some lawyers and judges and by many psychiatrists, but few U.S. courts have adopted it. Many U.S. states and several courts have adopted the test proposed by the American Law Institute's Model Penal Code. This test provides a defense to a criminal charge if, at the time of the act, the accused, by reason of mental disorder or defect, lacked substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law. In focussing on the volitional as well as the cognitive aspects of incapacity, this test has much in common with the European codes. The Italian penal code, for example, relieves a person of responsibility when he is deprived of the capacity of understanding or volition. By the early 1980s two U.S. states had abolished the insanity plea; a few other states had passed laws that allowed juries to find defendants guilty but mentally ill. In such a case, the defendant undergoes treatment at a mental institution before the sentence is carried out. The major differences between the civil law of insanity and the common-law variant are procedural. The continental codes ordinarily do not make use of lay juries in establishing responsibility, whereas the English-speaking jurisdictions do. Some countries, including Japan and England, identify a form of mental disorder short of insanity that may be taken into account in mitigating punishment. Insanity is justified as an exemption from responsibility on the grounds that responsibility assumes capacity to make elementary moral distinctions and power to adjust behaviour to the commands of the law. The insane should not be condemned since they cannot be deterred by the threat of penal sanctions. Critics say that the issue of responsibility is less important than the problem of how to identify and treat the disturbed individual. See also diminished responsibility.