insanity.pdf

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those who have been found not guilty under the insanity plea (Reed and
Seago, 1999).
Automatism : controversies and challenges
While English courts have clear-cut guidelines as to the interpretation of
sane automatism, American courts have failed to develop any clarity as to
their interpretations. Schopp (1995), in reflecting on the stance in American
jurisdictions, says that some courts have viewed automatism as a variation of
the insanity plea while others have expressly rejected this notion and
considered it a separate defence. Finkel (1988) refers to the sane automatism
defence as an ‘atypical’ insanity defence because the jury rules on whether
there was an act and does not concern itself with the existence of disease of
mind or the issue of intent. Thus the mental state of the accused is not central
to ascertaining responsibility. Finkel (1988) argues that psychiatric testimony
provides ‘the room, shadings, and interpretative leeway’ (p. 291) which
enables lawyers to employ the defence if other avenues have failed.
The legal debates as to the interpretation of the defence are paralleled by
psychological debates regarding the clinical veracity of acute periods of
dissociative amnesia. Schopp (1999) argues that the incidence of the complete
splitting between mental and physical activity is a clinical rarity. In fact, the
DSM-IV TR (APA, 2000) states that an acute form of dissociative amnesia
which is characterised by a sudden onset is less common than dissociation
arising from protracted periods of trauma.
As in Anglo-American jurisdictions, claims of sane automatism are viewed
with caution by South African courts because a diagnosis of dissociation relies
heavily on the accused’s account of the event. There are no objective
psychological measures for assessing whether he or she experienced a discrete
dissociative episode or the concomitant amnesia. While the factual evidence is
central to the court’s deliberations, the psychologist’s diagnosis hinges on the
accused’s account. The difficulty which arises is that expert psychological
evidence is based on a claim of a discrete period of dissociation which
occurred some time before the assessment. Kruger (1999) says that the
reliability and truthfulness of the accused are crucial factors in laying a factual
basis for the defence. This raises the question as to whether the expert is
placed in the position of assessing the reliability of the accused or whether
such claims are accepted on the face of what the accused has said. It is
therefore an ethical and professional dilemma - does the expert have to assume
the role of moral judge when asked to adduce evidence of such a nature? In
addition, if the accused’s truthfulness is questioned by the court, how is the
expert’s testimony viewed, based as it is on the accused’s account?
Non-pathological Criminal Incapacity
In the last twenty years South African courts have come to recognise the
importance of psychological factors in the assessment of criminal
responsibility. The provisions within s78(1) of the CPA have been interpreted
in such a way that factors other than mental illness have been considered in the
issue of non-responsibility (Strauss, 1995). Thus the biological component
(i.e. mental illness) of this test is not the sole negating factor, and emotional
factors have been held to affect criminal capacity.