Background. Increased crime is a problem in South Africa and complications arise when the accused is intellectually disabled. The accountability and fitness to stand trial of such individuals is an important facet that needs to be managed by the judicial and health systems.
Objective. To analyse the accountability and triability of intellectually disabled people awaiting trial referred to the Free State Psychiatric Complex (FSPC) from 1993 to 2003 according to Sections 77 and 78 of the Criminal Procedures Act (Act 51 of 1977).
Method. A retrospective study was conducted. The study population consisted of 80 intellectually disabled people awaiting trial in the Free State, referred to the FSPC. The reason for referral was the possibility that they were not triable or accountable. A data form was compiled to transfer the relevant information from the patients' clinical files.
Results. The study found that the majority of subjects were male (96.3%), unmarried (76.3%) and unemployed (63.8%). The median age was 27 years. A relatively high percentage (49%) had received some schooling and 16% had attended a special school. Most (32%) were referred from the Bloemfontein area and 68% were referred from the remainder of the Free State and other areas. The majority were referred according to Sections 77 and 78. The highest number of the offences were of a sexual nature (78%). Of the subjects, 62 (62.5%) were diagnosed as having mild mental retardation, while 16% were diagnosed as having moderate mental retardation. A total of 71 (71.25%) were found to be untriable and unaccountable.
Conclusion. Triability and accountability are not only reflected by IQ score, but also involve the accused's understanding of his/her environment, his/her speech and language proficiency, level of education, reasoning ability and the manner in which the crime was committed. It is important to note that having an IQ of 70 or less does not automatically mean that the accused is unfit to stand trial or is not accountable. It is possible for an intellectually disabled person to be triable, accountable or diminished accountable.
'Not too long ago the belief prevailed that insanity was a divine punishment for more or less identifiable sin. Such a belief clearly did not justify exemption from punishment for crimes committed by mentally ill persons.' (1) Increase in crime is a problem of great concern in South Africa and complications arise when the accused is intellectually disabled. The accountability and triability of such individuals is an important facet that needs to be managed by the judicial and health systems.
In South Africa a defendant can be referred during a trial in terms of Section 79(2) of the Criminal Procedures Act for 30 days of psychiatric observation to assess whether he/she has a mental illness or defect. If mental illness is diagnosed, the accused is considered unable to stand trial (Section 77) and/ or is considered 'incapable of appreciating the wrongfulness of his act; or of acting in accordance with the appreciation of the wrongfulness of his act' (Section 78). (2) When it appears that an accused is not triable or accountable, he/she is referred for psychiatric observation to a hospital for the mentally ill or to another institution as indicated by the court (Section 79(3)). (3-5)
The Diagnostic and Statistical Manual of Mental Disorders (DSM-IV)6 defines mental retardation as sub-average intellectual functioning (IQ of 70 or less) combined with limitations in skill areas related to mental functioning. Onset of the disability must occur before the age of 18 years. (7,8) According to the Amendment of Section 77 of Act 51 of 1977, the term 'intellectually disabled' is the legal term used to refer to persons considered 'mentally disabled' (9) or mentally retarded, and it is the term used in this study.
Various studies have been conducted in South Africa. A local study by Verster and Van Rensburg (10) examined the mental state of offenders admitted to the Free State Psychiatric Complex (FSPC) for psychiatric observation after committing homicide (1989-1998). …