'My Brain Made Me Do It'-How Neuroscience May Change the Insanity Defence

By Kaliski, Sean Z. | South African Journal of Psychiatry, March 2009 | Go to article overview

'My Brain Made Me Do It'-How Neuroscience May Change the Insanity Defence


Kaliski, Sean Z., South African Journal of Psychiatry


According to Garland et al.: (1) 'If our brains are determined and if the brain is the necessary and sufficient organ that enables the mind, then we are left with the question: Are the thoughts that arise from our mind also determined? Is the free will we seem to experience just an illusion, and if the free will is an illusion, must we revise our concept of what it means to be personally responsible for our actions?'

The law can only function predictably (and reasonably fairly) by conveniently assuming that all humans exercise free will to the extent that everyone can understand the law and control their own behaviour. But the law also provides for excuses that enable some wrongdoers to escape responsibility. The general rule in South African law, as provided in Section 78 of the Criminal Procedure Act, is that mental illness (or defect) may somehow interfere with an accused's ability to appreciate that his actions were wrong, or ability to control his behaviour (even if he knew it was wrong). This provision also now includes omissions, i.e. failure to act when he or she was obliged to.

And what is this 'mental illness or defect' that so convincingly clouds reason or loosens the reins of self-control? No legislation or judicial precedent has provided a satisfactory definition, other than to indicate that 'psychiatrists know best, so ask them'. Unfortunately, the accused only has to prove on a balance of probabilities that he or she suffers from a mental illness or defect; this is considerably less stringent than the 'beyond reasonable doubt' test that is used in proving guilt in criminal proceedings. And legislation now allows that 'if it is alleged at criminal proceedings that the accused is by reason of mental illness or mental defect or for any other reason [my italics] not criminally responsible for the offence charged ... direct that the matter be enquired into and be reported'. The limits of 'any other reason' are not addressed, but conceivably could refer to anything about an accused that puzzles the court. It now seems that the ambit of excuses has been so broadened that, theoretically, any lawyer, with the aid of the requisite expert, can convince a court that an otherwise normal person's momentary catastrophic behaviour was the result of a pathological process.

The psychoanalysts started the rot. They provided convoluted (but untested) formulations in which ids, egos and superegos engaged in eternal struggles, and where emotionally distant fathers and domineering mothers were the causes of terrible oedipal (and other) conflicts that influenced their thoughts, feelings and, ultimately, behaviour. They presented the courts with a consistent heady brew of determinism in which the overriding message was that we all have been influenced by antecedent events, out of our control, which apparently rob us of freedom of choice.

Courts have gradually become bemused by these un-testable parables; how, for example, does one verify that a particular dynamic actually did operate those many years previously and, even if it did, by what stretch of deduction can it ever be proved that any childhood phenomenon is causally linked to a particular crime committed in adulthood? Nevertheless, ardent analysts still continue to peddle their potted theories derived from one of the many long-dead fantasists (otherwise revered as theorists), and sometimes our courts still swallow these pseudoscientific pronouncements. The recent history of our non-pathological incapacity defence, in which strange terms such as 'emotional storm', 'catathymic crisis' and 'disintegrated ego' (inter alia) have been used to explain why an accused was not responsible for killing an intimate, remains as a testament to these unscientific musings. In every case, the real explanation was that the accused was just very very angry. The Court of Appeal eventually ruled in S v. Eadie (2) 2001 (1) SACR 185 that, for this defence to succeed, there has to be objective evidence (primarily by the nature of the accused's actions) that he had acted in a state of automatism. …

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