Crime and Punishment in Jewish Law: Essays and Responsa

By Walter Jacob; Moshe Zemer | Go to book overview

Insanity in Criminal Cases

Contemporary American Reform Responsa ( New York, 1987), #7

Walter Jacob

QUESTION: Are there rabbinic opinions on insanity as a defense in a criminal trial? What is the status of the insane in criminal matters? ( A. Adelstone, Flushing, New York)

ANSWER: When the Mishnah and the discussed individuals of limited ability, they frequently used the phrase heresh shoteh vegatan -- the deaf, the insane and the minor; insanity included any serious mental imbalance. No one in these categories may be punished for their offenses, and they are considered to have limited legal liability ( M. Erub. 3.2; R. H. 3.8; Meg. 2.4; Hag. 1.1; Git. 2.5, 5.8; B. K. 4.4, 5.6, 6.4, 8.4, etc.). The later Jewish codes continue this classification. The insane are not considered responsible for injuries to others, though others who assault them are liable for the usual punishments ( M. B. K. 8.4, 87a; Yad Hil. Hovel 24.20; Shulhan Arukh Hoshen Mishpat 424.8). However, if the individual has lucid moments, in other words, if insanity is temporary, then he is considered responsible ( Yad Hil. Mekh. 29; Shulhan Arukh Hoshen Mishpat 235.23). If the rights or the estate of persons of unsound mind need to be defended, the court appoints an administrator (epitropos) who looks after their interests. They are not entitled to damages in cases of insult or defamation of character ( B. K.86b; Yad Hil. Hovel 3.4; Shulhan Arukh Hoshen Mishpat 300.27).

The status of the insane in rabbinic literature is, therefore, clear. The discussion of the insane in the later responsa deals almost exclusively with problems of engagement, marriage. divorce or inheritance. Two problems remain for our discussion. How is insanity defined by rabbinic literature? What is temporary lucidity?

The Talmud attempted to define the insane as one "who wanders alone at night and spends the night in the cemetery and tears his garments" ( Hag.3b). This definition was immediately challenged by authorities on the same page, and no resolution was achieved. Others defined insanity to include individuals

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