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Factual Tests for Identification of Volitional Insanity

Published online by Cambridge University Press:  16 February 2016

S. Z. Feller
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Extract

A. Soundness of mind at the time of committing an offence is complementary to mental maturity as a condition for the criminal capacity of the perpetrator and is thus a condition for the criminality of his act. Accordingly, the perpetrator's mental disorder limits the criminality of his act, although not every such disorder has such radical legal consequences. If the disorder is cognitive, it must be such as to prevent the person from understanding the physical or social meaning of his conduct: if it is volitional, it must be such as to prevent him, at the time of his act, from choosing between performing the act and refraining from doing so. These are symptoms of mental disorder that negatives the criminal capacity of a person, and each of them is a necessary, but not a sufficient, condition. It is essential that this be due to a disease of the mind or an organic defect of reason. The disorder in question is therefore a radical one, and one that is also chronic if not permanent in nature, as opposed to temporary or less deep-rooted conditions such as a disturbed state, a trauma or emotional condition, impulsiveness in certain matters or urges that deviate from the normal in certain areas.

B. The following remarks are confined to the absence of criminal capacity on the volitional level, to which we shall refer in short as “volitional insanity’. This is the case where the person at the time of his act did not have a choice between acting or not acting due to a disease affecting his mind. This case is also referred to as the commission of an act as a result of an irresistible morbid impulse.

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Articles
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Israel Law Review , Volume 19 , Issue 1 , Winter 1984 , pp. 10 - 46
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Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1984

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References

1 The term “disorder” of the mind is intended to cover the two reasons for unsoundness of mind stated in sec. 19 of the Penal Law, 1977 (L.S.I. Special volume): “disease affecting his mind or … a defect in his mental faculties”.

2 In our view every witness is a material witness and there is no difference in the duty to tell the truth, the whole truth and nothing but the truth, according to the party that brings the witness to the stand. We find it hard to explain the feeling that the expert witness's position is from the point of view of public morality even more objective. Although it is difficult to talk of “levels” in the quantitative meaning of the term, perhaps the term “level” is indeed appropriate here, simply because it also has a qualitative moral sense.

3 Crim. case (T.A.) No. 161/82 State of Israel v. Zakai, 26 January 1983. It should be noted that in this case an order was made prohibiting publication of the names of the complainants or of any fact likely to lead to their identification.

4 Case 178/79/MR. The Military Prosecutor v. Azulay Eli (unpublished).

5 Ibid., para. 2 of the judgment.

6 Ibid., para. 11.

7 For about 11 pages of the judgment, paras. 3–10.

8 See paras. 11–19.

9 Para. 20.

10 para. 11.

11 Ibid.

12 Ibid.

13 Ibid., para, 11, in fin.

14 Ibid., paras. 13–15.

15 Case No.

16 Ibid., para. 49 of the judgment.

17 Ibid., paras. 49–57.

18 Ibid., para. 46 in fin.

19 Ibid., para. 51 (p. 62).

20 Ibid., para. 57 in fin. (p. 73).

21 Cr. App. 187/61 Aliza Pano v. A.G. (1962) 16(ii) P.D. 1105, 1111–1112.

22 Cr. App. 118/53 Mandelbrot v. A.G. (1956) 10 P.D. 281, 291, 334; 2 S.J. 116.

23 Ibid., at 333, letters C-D.

24 Ibid., at 335–353.

25 Cr. App. 186/55 Victor Mizan v. A.G. (1957) 11 P.D. 769.

26 See S.Z. Feller, “Is There No General Basis for the Mental Element of Crime in Israeli Law?” (1967) 23 HaPraklit 308.

27 For example, sec. 10 of the Swiss Criminal Code; sec. 34 of the Greek Criminal Code; sec. 88 of the Italian Criminal Code; sec. 13 of the Bulgarian Criminal Code; sec. 11 of the Principles of Criminal Law of the Soviet Union and its Republics and the parallel sections in the codices of those Republics; sec. 13 of the Czechoslovakian Criminal Code; sec. 46 of the Turkish Criminal Code; sec. 48 of the Rumanian Criminal Code; sec. 11 of the Austrian Criminal Code; sec. 20 of the West German Criminal Code; sec. 25 of the Polish Criminal Code; sec. 20 of the Ethiopian Criminal Code; sec. 10 of the South Korean Criminal Code. See also sec. 4.01 of the Model Penal Code (1962), The American Law Institute; sec. 503 of the Study Draft of a New Federal Criminal Code (1970), The National Commission of Reform of Federal Criminal Laws; sec. 40 of the French Avant-Project Définitif de Code Pénal-Dispositions Générales (1978). We have no doubt that the absence of statutory provisions on volitional insanity is an anachronism. The proof is the way in which the Israeli criminal law on this subject were updated, see: S.Z. Feller, op. cit. supra n. 26 and n. 36 below.

28 The relevant provisions are as follows: “Mental defect 33. A person shall not bear the criminal responsibility for an act that he has committed if, by reason of a mental illness or defect, he is incapable — (1)… (2) to conduct in accordance with law.”

29 Cameron, N.A., Handbook of Psychiatry, Arieti, & Brodi, (eds.), (New York, 2nd ed., 1974) vol. III, pp. 686, 691Google Scholar; Henderson, and Gillespie's, Textbook of Psychiatry (London, 10th ed., 1969) 289, case no. 27 at 296Google Scholar; case no. 28 at 300; Kolb, L.C., Modern Clinical Psychiatry (Philadelphia, 9th ed., 1977) 480, 483, 484.Google Scholar

30 Cameron, op. cit., 681, 685; Kolb, op. cit., 480, 485, 491; Freedman, A.M., Kaplan, H.I., Sadak, B.J., Comprehensive Textbook of Psychiatry (Baltimore, 2nd ed., 1976) vol. I, p. 922.Google Scholar

31 Cameron, op. cit., 684; Freedman, op. cit., 922, 923; Kolb, op. cit., 480, 483. See the citations and summings-up in Mandelbrot, supra n. 22 at 281, 290–293.

32 This formal limitation has its origins in the McNaughten Rules and the way in which they were formulated. To this day, the limits of insanity in English law have not been extended to include volitional insanity, in spite of criticism of the fact. On the other hand, in a number of systems based on the Common Law irresistible morbid impulse has been recognized as an aspect of insanity negativing the criminality of the act. It is likewise recognized by the American Model Penal Code. See Williams, , Textbook of Criminal Law (London, 1978) 601–602.Google Scholar

33 In the sense that it conforms with rules of objective reality that are as acceptable as all the other factors that make up that reality, and are therefore rational. The term “rational” here is not designed to be a value-judgment, whether negative or positive, but to stress the fact that the situation imagined by that person could be real, and is not therefore contrary to common sense.

34 Cr. App. 870/80 Ladani v. State of Israel (1982) 36 (i) P.D. 29, 35 at letters D and F.

35 Cr. App. 228/76 Botel v. State of Israel (1977) 31 (ii) P.D. 141.

36 Ibid., at 148, letters A–B.

37 Ibid., at 147, letter A (and preceding lines).

38 Ibid., at 146, letters C–G. The quotation apparently preserves the original style and faithfulness to the written text of the expert's report.

39 Ibid., at 147, letters B–C.

40 Ibid., letter A (and preceding lines).

41 Ibid., letters A–B. Incidentally, it is remarkable that experts express an opinion on the sanity of a person at a point in time before the examination, without investigating the full facts of the earlier event. The self-correction is no justification.

42 The court considered descriptions of the “true and veritable” background to the act: the absence of any connection between the act and the impulse derived from a mental disorder, the act which was the expression of a sudden wild outburst, performance of the act out of anger following a quarrel with the victim, and other such circumstances found by the court.

43 Cr. App. 292/58 Mehring v. A.G. (1961) 15 (i) P.D. 632.

44 Ibid., at 634–635.

45 Ibid., at 639 letter E.

46 Ibid., at 640, letters E–F.

47 Ibid., letter G.

48 Ibid., at 641, letters C–D.

49 Ibid., at 641, lines preceding letter A.

50 Op. cit., supra n. 21.

51 Ibid., at 1107, lines preceding letter A.

52 Ibid., at 1110, letters A–B.

53 Ibid., letters B–C.

54 Ibid., at 1109, letters C and D.

55 H. Cohn J's dicta on this subject are remarkable and impressive; ibid., at 1111–1112, cited in full above, see text at n. 21.

56 Cr. App. 299/58; 309/58 Barazani and Mizrahi v. A.G. (1959) 13 (iii) P.D. 1409.

57 Ibid., at 1411, letters E–F.

58 Ibid., at 1413, letters A–B.

59 Ibid., at 1411, letters F–G.

60 Cr. App. 247/66 Sa'ada v. A.G. (1966) 20 (iv) P.D. 32.

61 Ibid., at 34, letters B–C.

62 Ibid., letter A.

63 Ibid., letters B–C.

64 See text at n. 56 supra.

65 See text at n. 50 supra.

66 Ibid.

67 Cr. App. 175/64 Ephraim Ben Ya'akov v. A.G. (1965) 19 (iv) P.D. 143.

68 Ibid., at 144, letters C–E.

69 Ibid., at 144, 144–145.

70 Cr. App. 172/62: 181/62 Grama v. A.G. (1963) 17 (ii) P.D. 925.

71 Ibid., at 926, letter B.

72 Ibid., at 929, letters B–C.

73 Ibid., at 933, lines before letter A.

74 See supra n. 35 at 148 letters C–G.

75 Compare the language with which the court defines the strength of the appellant's superstition, supra n. 70 at 929, letter B.

76 In the Pano case, supra n. 21 at 1105, 1112 letter G.

77 Crim, Case (J'lem) 173/69 State of Israel v. Denis Michael Rohan (1970) 68 P.M. 344.

78 Ibid., at 357.

79 Ibid., at 359.

80 Ibid., at 360.

81 All the passages quoted are on page 361 of the judgment.

82 Ibid., at 357.

83 Supra n. 22.

84 Supra n. 25.

85 Supra n. 22 at 287, letter.

86 Serious Offence 3154 A.G. v. Mizan (1956) 11 P.M. 140.

87 The lecture was published in (March, 1981) 45 Hedei Din 2, the journal of the Bar Association of the Tel Aviv-Jaffa District.

88 This was a rare instance in the history of justice in Israel where the prosecutor acted in defence of the accused and in actual fact was asking for his acquittal.