Insanity Defense: Past, Present, and Future

Disclaimer

Terms such as “insanity” and “unsoundness of mind” are legal concepts and are used frequently in the court of law. Though the Mental Health Act, 1987[7] has clearly recommended the abolition of various offensive terminologies, unfortunately, these terminologies continue to exist in various legislations, rules, regulations, and also even recent case laws.[6] The researchers were also therefore unable to entirely avoid these terminologies. If any person reading this research article feels offended because of usage of such terms, researchers deeply regret.

Medical insanity versus legal insanity

Section 84 lays down the legal test of responsibility in cases of alleged crime done by a person with mental illness. There is no definition of “unsoundness of mind” in the IPC. The courts have, however, mainly treated this expression as equivalent to insanity. But the term “insanity” itself has no precise definition, carries different meaning in different contexts and describes varying degrees of mental disorders.[19] Every person who is mentally ill is not ipso facto exempted from criminal responsibility. A distinction is to be made between legal insanity and medical insanity. A court is concerned with legal insanity, and not with medical insanity.[16,19] Any person, who is suffering from any kind of mental illness is called “medical insanity,” however “legal insanity” means, person suffering from mental illness should also have a loss of reasoning power. The term legal insanity also refers to the “mental state” of a person at the time of committing crime and nothing else. This is purely a legal concept and is unrelated to the various psychiatric diagnoses.

In simple words, legal insanity means, at the time of the commission of the act, the person should be suffering from mental illness and also have a loss of reasoning power. This issue is clearly depicted in Section 84 IPC as that person incapable of knowing:

1. The nature of the act, or

2. That he is doing what is either wrong or

3. Contrary to law.[16]

Mere abnormality of mind or partial delusion, irresistible impulse or compulsive behavior of a psychopath affords no protection under Section 84 IPC.[16]

In one of the landmark decisions, in the case of Surendra Mishra versus state of Jharkhand,[20] the Apex Court has stated that an accused who seeks exoneration from liability of an act under Section 84 of the IPC is to prove legal insanity and not medical insanity. Further, it also said that expression “unsoundness of mind” has not been defined in the IPC, and it has mainly been treated as equivalent to insanity. But the term insanity carries different meaning in different contexts and describes varying degrees of mental disorders. Every person who is suffering from mental illness is not exempted from criminal liability. The mere fact that the accused is conceited, odd, irascible, and his brain is not quite all right, or that the physical and mental ailments from which he suffered had rendered his intellect weak and affected his emotions or indulges in certain unusual acts, or had fits of insanity at short intervals or that he was subject to epileptic fits and there was abnormal behavior or the behavior is queer are not sufficient to attract the application of Section 84 of the IPC.[16]

The Apex Court in its judgment reported that though accused suffered from certain mental instability of mind even before and after the incident but from that one cannot infer on a balance of preponderance of probabilities that the appellant at the time of the commission of the offense did not know the nature of his act; that it was either wrong or contrary to law, hence rejected insanity defense.[20,21] In a similar case, despite having a medical history of insanity proved by evidence in court, the court convicted the accused based on his subsequent conduct viz., his act of concealing the weapon, bolting the door to prevent arrest and absconding thereafter as the said acts were held by the court to be a display of consciousness of the guilt.[22]

The crucial point of time for determining the state of mind of the accused is the time when the offense was committed. The person suffering from mental illness is one of the facts for Section 84 IPC. However, other facts which also needs to be given importance are: Motive for the crime, the previous history as to mental condition of the accused, the state of his mind at the time of the offense, and the events immediately after the incident that throw a light on the state of his mind.[23] To summarize, it is not only the fact that the person is suffering from mental illness but it is the totality of the circumstances seen in the light of the evidence on record to prove that the person was also unable to appreciate the nature of the act or wrongdoing or that it was contrary to the law is appreciated in the court of law for insanity defense.

Burden of proof in insanity defense

Under law, every man is presumed to be sane and assumed to possess a sufficient degree of reason to be responsible for his acts unless the contrary is proved.[24] Every person is presumed to know the natural consequences of his act. Similarly, every person is also presumed to know the law. The prosecution does not have to establish these facts.[16]

In insanity defense, there are two aspects of proving an offense, which are as follows:

1. Commission of crime and

2. Insanity defense.

The burden of proving the commission of an offense is always on the prosecution, and that never shifts. The prosecution has to prove the same beyond a reasonable doubt. However, the onus of proving the existence of circumstances (Section 84 IPC) for insanity defense would be on the accused (Section 105 of the Evidence Act) and the court shall presume the absence of such circumstances. The accused has to prove by placing material before the court such as expert evidence, oral and other documentary evidence, presumptions, admissions or even the prosecution evidence, satisfying that he was incapable of knowing the nature of the act or of knowing that what he was doing was either wrong or contrary to law.[25,26] The Supreme Court have ascertained that the crucial point of time at which unsoundness of mind should be established is the time when the crime is actually committed and the burden of proving this, lies on the appellant for claiming the benefit of the Section 84 provision.[26,27,28] In Dahyabhai Chhaganbhai Thakker versus state of Gujarat, this court has held that even if the accused was not able to establish conclusively that he was insane at the time he committed the offense, the evidence placed before the court may raise a reasonable doubt in the mind of the court as regards one or more of the ingredients of the offense, including mens rea of the accused and in that case the court would be entitled to acquit the accused on the ground that the general burden of proof resting on the prosecution was not discharged.[23] Though the burden is on the accused, he is not required to prove the same beyond all reasonable doubt, but merely satisfy the preponderance of probabilities.[21,29] The burden of proof casted upon him is no higher than that rests upon a party to civil proceedings.[21]

Motivation for a crime

Mere absence of motive for a crime and howsoever atrocious the crime may be, in the absence of plea and proof of legal insanity, cannot bring the case within the ambit of Section 84 IPC.[16,30] Also the fact that the accused made no attempt to run away from the crime scene, would not indicate that he was insane or, that he did not have the necessary mens rea for the commission of the offense.[30] Further, the Supreme Court have clearly stated that the mere abnormality of mind or partial delusion, irresistible impulse or compulsive behavior of a psychopath affords no protection under Section 84 IPC.[16]

Plea of insanity

The onus of proving unsoundness of mind is on the accused, hence the plea of insanity should be taken by the accused or by his lawyer or his family members or previous history of insanity is revealed, it is the duty of an honest investigating officer to subject the accused to a medical examination and place that evidence before the court and if this is not done, it creates a serious infirmity in the prosecution case and the benefit of doubt has to be given to the accused.[19] Hence, the plea of insanity should be taken during the investigation or during the trial in the lower court not during the appeal to the higher court.[16,19]

To summarize, the concept of insanity defense is a legal one and not a medical one. Although a psychiatrist's opinion is taken into account ultimately the decision to accept or reject the defense lays with the court the world over. Based upon the reasoning power of the defendant during the circumstances of the crime as shown in the Table 1.

Review of accompanying documents

It is the duty of the psychiatrist to review all the accompanying legal documents and ascertain the referring authority, reason for referral, date and time of referral, and available time in hand to provide the opinion. Further defendant's medical and psychiatric records should be reviewed prior initiating the assessment of the defendant. A careful history should be gathered from all possible sources such as the defendant, accompanying person, FIR, postmortem and autopsy report, photographs of the crime scene, behavior observational report, interviewing the family members, and past treating psychiatrist.

Assessment of history of presenting illness

The accused should be interviewed as early as possible in time to the offense though practically, this may not always be feasible. At the outset of the assessment, the defendant must be informed about the purpose of the evaluation and the lack of confidentiality. Psychiatrist should document the date and time of assessment, demographic details, identification marks and injuries on the body. A comprehensive inquiry should be done into the history of presenting illness, past history, family history, personal history and premorbid personality. Psychiatrist should never forget to do an assessment of substance use in past and present.[6]

Assessment focusing on mental state at the time of the offense

Psychiatrist should make an effort to evaluate the mental status of the defendant at the time of the offense. He should try to get the detailed account of the incident through open-ended questions. It would be prudent to ask the defendant to give a step-by-step account of his behavior, emotions, biological, occupational, and social functioning beginning 1-week prior to the offense and to be enquired till 1-week after the commission of offense. The comprehensive inquiry should be done on his cognition, behavior, emotions, and perception, prior, during, and immediately after the commission of the offense. Psychiatrist should enquire by asking open-ended questions to ascertain the defendant's knowledge of law, nature of his act and also whether he is in a position to appreciate right and wrong.

Please refer to Table 3 for illustrative questions to interview the defendant.

Psychiatrists should also look into behaviors of the defendant before, during, and after the commission of offense, which can give clues toward patient's complete mental status.

Mental Status and cognitive functioning assessment

Mental status examination should be done without leading questions. The psychiatrist should ask open-ended questions and he should restraint himself from asking leading questions. In-experienced psychiatrist can fall easily into the trap of the malingering patients. Hence, it is advisable to admit the patient and do a serial mental status examination and serial ward observations. The behavioral observation report is given in Table 4.[6]

Diagnosis

Considering the nature of the assessment and law presumes everyone is sane unless the contrary is proved, it is prudent to start assessment in the same direction. Psychiatrist should resist making definitive diagnosis initially. Diagnosis needs to be kept open or provisional diagnosis to be considered. After gathering information from all possible sources, depending upon the serial mental status examination, serial ward observation, psychological testing and laboratory investigations, psychiatrist should make honest objective assessment and give his opinion regarding the patient's lifetime diagnosis and present mental status. He should also make sincere effort to opine on the mental status of the defendant during the commission of the offense.