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The insanity defence without mental illness? Some considerations

  • Luca Malatesti*
  • , Marko Jurjako
  • , Gerben Meynen
  • *Corresponding author for this work
  • University of Rijeka
  • Vrije Universiteit Amsterdam

Research output: Contribution to journalArticleAcademicpeer-review

Abstract

In this paper we aim to offer a balanced argument to motivate (re)thinking about the mental illness clause within the insanity defence. This is the clause that states that mental illness should have a relevant causal or explanatory role for the presence of the incapacities or limited capacities that are covered by this defence. We offer three main considerations showing the important legal and epistemological roles that the mental illness clause plays in the evaluation of legal responsibility. Although we acknowledge that these advantages could be preserved without having this clause explicitly stated in the law, we resist proposals that deny the importance of mental illness in exculpation. We argue, thus, that any attempt at removing the mental illness clause from legal formulations of the insanity defence should offer alternative ways of keeping in place these advantages.

Original languageEnglish
Article number101571
Pages (from-to)1-7
Number of pages7
JournalInternational Journal of Law and Psychiatry
Volume71
DOIs
Publication statusPublished - Jul 2020

Funding

Many thanks to Mia Biturajac for reading and commenting on previous versions of this article. MJ and LM are funded by the Croatian Science Foundation (HRZZ) ( Project RAD , Grant IP-2018-01-3518 ).

UN SDGs

This output contributes to the following UN Sustainable Development Goals (SDGs)

  1. SDG 3 - Good Health and Well-being
    SDG 3 Good Health and Well-being
  2. SDG 16 - Peace, Justice and Strong Institutions
    SDG 16 Peace, Justice and Strong Institutions

Keywords

  • Criminal law
  • Discrimination
  • Insanity defence
  • Responsibility
  • Stigma
  • The mental illness clause

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