Beyond Insanity

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Not guilty by reason of insanity- special verdict, internatal factor, disease of the mind, over inclusive and under inclusive (legal v moral wrongs).

Non insane automatism- complete defence, external factor, loss of voluntary control and underinclusive. 

Insanity- overinclusivity- Hennessy vs Quick diabetes. Sullivan epilepsy Burgess sleepwalking= non insane automatism? 

'in none of the other cases where sleepwalking has been mentioned so far as we can discover, has the court had the advantage of the sort of expert medical evidence which was available to help the judge here.' 

Sexomnia- an arousal disorder taking place during sleep, overactivity of nervous system whilst asleep. More likely to do it to themselves and claim to be non insane automatoms. Predominent among men- 80% do it more to other people. Scienific understanding is in its infancy. Implicated in a number of sex offence trials. Insane or non insane automatism? 

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Only 2% of people sleep walk and of them only 4% have this condition.

James Bilton- 'his eyes were really funny, the attack was very fast, rough, inconsiderate and without affection.' Complete acquittal. 

Kenneth Ecott 2007- 'I laid down to go to sleep. The next thing I knew I was stood outside completely naked in the middle of the street wondering what the hell I was doing there.' Sucessful automatism after ****** a 15 yo.

Jason Jeal 2008- 'These people should not just walk free, they should either be given a prison sentence or medical treatment, otherwise we could find more and more poeple finding this defence on the internet and using it.' 'With me, sleepwalking comes on through drink. People have told me I've done it before.'

Andrew Machin 2013. 

In Belgium a man ***** a 4 year old but didnt get convicted due to sexomnia. 

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Analysis legal points

Insanity defence in situ- 1) not prone to recur? Yes some slept walked since 13. Another 25 years old and had regular sex with partner whilst asleep. Burden of proof on prosecution, hard to disprove when someones being sleep walking for many years. 

2) Mixed causes? 'naturally it is difficult to accept that sleep walking does not have an internal cuase. But does this mean that external factors have no role to play in the onset of such episodes?' MacKay.

'concurrent causes can allow for the defence of sane automatism to be left to the jury even if one of the concurrent causes is self induced intoxication. (not normally a defence). Tyrer J- as seen in Pooley 2007. 

CA must provide more guidance on the issue. Many are under the influence of alcohol. 

Law Commission- Criminal Liability- Insanity and Automatism- A Discussion Paper 2013. 'not criminally responsible by reason of a recognised medical condition.'

The defendant wholly lacked the capacity to i) rationally form a judgement about the relevant conduct or circumstances ii_ to understand the wrongfulness of what he is charged with having done.

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iii) to control his physical acts in relation to the relevant conduct or circumstances as a result of a qualifying recognised medical condition.' Now recognised as a mental disorder. 

Socio-legal explanations- 1) familiarity of conduct- most research in partners. 11% with problem do sex while not aware of what theyre doing. Most have shown remorse which may show they didnt intend it. 

2) displays of concern/ contrition- Burgess- hit a woman with a television set. 'God forgive me Tina, I must have had some kind of blackout or fit. I have known for sometime I was heading for some sort of break down.' Ran from the scene. 'The possible disappointment or frustration caused by unrequited love is not to be equated with something such as concussion' Lane. 

There is a possibility of fabrication- Zack Thompson. 

3) sexomnics as victims? Case 1- 'pyschological evaluation revealed social difficulties during child hood. Her mother was an alcholic and she was placed in a home for children at the age of 10. In addition she was sexually abused at 16.'

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Case 2- 'Pyschological assesment revealed emotional deprivation during childhood. Indeed her parents divorced when she was 13. She lived with her depressive, alcoholic mother, with whom the relationship was unsatisfactory. In addition the patient was traumatised by witnessing the **** of her mother by her companion when she was 15.' 

Perpertrator is often injured in the act.

Case Study 2- Antisocial Personality Disorder- Mental disorder sometimes called psychopathy. 

Symptoms- failure to conform to social norms, deceitfulness, impulsivity or agressiveness, reckless disregard for safety, consistent irresponsibility, and lack of remorse. 

Causality 1- Victims? Links to childhood neglect and trauma- 'there was a high prevelance of childhood experiences of neglect and abuse among the offenders. Higher levels of childhood relational trauma were found among participants who obtained high scores on the PCLR. There was also a significant negative association between age of first relational trauma and psychopathy scores.' Craparo.  This is a proven causal link

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Causality 2- brain scans- seen that less is going on in their brains. 

Insanity defence? Repeat offenders- psychopaths 'start offending at an early age and continue across the life span with acts that are often predatory in nature.' Viding. Disease of the mind. Sullivan 1983-'protecting society against the recurrance of dangerous conduct.'

Cant follow social norms, so dont know nature and quality of their acts. So maybe should be able to claim insanity. Has never been sucessful. 

Law Commission 2013- 'we take the provisional view that there comes a point at which such an argument loses all force. That point is where the evidence of recognised medical condition of personality disorder is no more than evidence of what would ordinarily be regarded as criminal behaviour.' 'If however we say that the accused condition was manifested only by abnormally agressive or seriously irresponsible behaviour then we can see that there is no reason to exculpate the accused unless it can be shown that the was some other underlying condition.' 

70% of prisoners have this disorder. 

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Dont fit into diminished responsibility. 

Analysis- No remorse (unlike in sexomnia)- no sincere desire to change their behaviour. 'As soon as you get into groups and start talking with nurses, its like everyone puts a front on. You know I have seen that when the psychiatrists come into certain meetings as soon as if psychiatrist comes in, certain patients will start talking differently. I think to myself if I can see this surely they can. I do think they get sucked in. I can predict what theyre gonna say. They'll say theyve put this skill into practise when I know they havent.' McRae. 

ASPD is merely a synoym for criminal conduct- thus responding to the neuro scientific (see previous law commission quotes about normal criminal behaviour). 

Why have this diagnosis- psychopathy and our punitive responses to those with the disorder may have important morality shaping functions. 'The law treats peoples conduct as autonomous and willed, not because it is, but because it is desirable to proceed as if it were.' Packer. 

Cant respond sympathetically as wont work to keep social order.

Laws not linear- the distinctions show how difficult the concepts are. 

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