Apr 15, 2025
Insanity as a Condition for Criminal Responsibility
In Norwegian criminal law, accountability is a fundamental prerequisite for criminal responsibility. Criminal accountability requires a certain degree of mental health and maturity in the perpetrator. Accountability, or criminal culpability, is therefore one of the four basic prerequisites for imposing punishment under Norwegian law. This article provides an overview of the concept of accountability, its justification, delimitation, and practical significance in criminal law.
The Concept of Accountability
Accountability is the starting point and the norm, whereas non-accountability requires special justification. Although the Penal Code does not use the term "accountability" directly, it is well established in legal terminology. Alternatively, one may refer to criminal culpability.
Attempts have been made to provide a positive definition of the essence of accountability. The German criminal law jurist Franz von Liszt defined accountability as "the normal ability to be motivated by motives." This definition points in the right direction, but offers limited practical guidance. The question of what is "normal" is not easy to answer precisely, as human mental life shows great variation.
Instead of providing a positive definition of accountability, legislation focuses on the states that exclude accountability. In Norwegian law, these states of non-accountability are:
Psychosis (previously referred to as insanity)
Severe mental retardation
Unconsciousness (except for self-induced intoxication)
Young age (under 15 years)
Different Systems for Delimiting Non-Accountability
In legal science, three different systems are distinguished for delimiting the grounds for non-accountability:
The Medical (Biological) System
This system describes, by means of medical and biological characteristics (age, insanity, mental deficiency, unconsciousness), the states that exclude accountability. Norwegian criminal law primarily relies on this system.
The Psychological (Metaphysical) System
Here, the decisive factor is the person's capacity for insight and free will. The system focuses on how the mental state has affected the person's ability to understand and assess their actions.
The Mixed Medical-Psychological System
This system combines the two previous ones by using both medical and psychological characteristics. Most countries use a variant of this system.
The Penal Code of 1902 originally had a mixed system, but after the revision in 1929 fully adopted the medical principle. This means that it is sufficient to ascertain that the perpetrator was in one of the defined states at the time of the act to determine non-accountability - no further assessment of how the state affected the person's understanding or choice of actions is required.
The legal change in 1997 did not significantly alter the system, but made terminological changes and codified principles that were previously based on case law. The expression "insane" was replaced with "psychotic," and a separate provision was given for severe mental retardation.
The Justification for the Accountability Requirement
The requirement for accountability can be justified in various ways, and historically different justifications have been emphasized:
Moral Justifications
The premise here is that it would be unfair to punish someone acting under the influence of illness or consciousness disturbances. The individual cannot be regarded as responsible for his actions, and there is no basis for reproach. This view rests on an indeterministic perspective - that the normal individual "can account for" their actions, whereas the non-accountable cannot.
Practical, Criminal Policy Considerations
From an individual preventive standpoint, punishment is not effective for the groups in question. The mentally ill and mentally retarded are more efficiently treated within healthcare or social care than in prisons. The common criminal reaction system poorly accommodates children. From a general preventive standpoint, punishment cannot achieve its purpose for individuals who lack the predisposition to be influenced by the threat of punishment.
Our current rules have developed through a historical evolution where both moral considerations, general and individual preventive viewpoints, and even purely technical legal considerations have had an influence. In the revision of the accountability rules in 1997, considerations of the non-accountable person's lack of moral culpability were at the forefront.
The Timing of the Accountability Assessment
Accountability must be present at the time the criminal act is committed. This principle has several important consequences:
If the perpetrator was non-accountable at the time of the act, they cannot be punished even if the state of non-accountability has ceased before the case comes to court.
If the perpetrator was accountable at the time of the act, criminal liability does not fall away if they later become psychotic.
Even if the perpetrator was accountable at the time of the act, a subsequent change in mental state can exclude prosecution and conviction.
If a person becomes psychotic after the conviction, the punishment cannot be enforced.
The fact that it is always the time of the act that matters for criminal liability shows that treatment considerations were not the primary basis for developing the rules.
Actiones Liberae in Causa
In some cases, there is a time interval between the actual criminal act and the outcome. If the perpetrator was accountable at the time of the act, this is sufficient to incur responsibility, even if they were non-accountable when the outcome occurred.
It may also occur that the harmful act is performed in a state of non-accountability, but the perpetrator has foreseen or should have foreseen the subsequent course of events. This is referred to as "actiones liberae in causa" (actions originating from free will). Examples:
A mother who knows she moves restlessly in her sleep, nonetheless takes the child into bed and smothers it in her sleep.
A driver who falls asleep at the wheel and kills a person.
A railway worker who falls asleep during duty, leading to a train accident.
In such cases, the person can be held responsible for the causal sequence initiated in a conscious state.
States of Non-Accountability in Norwegian Law
Psychosis
The term "psychotic" replaced the previous expression "insane" with the legal amendment in 1997. A person is considered psychotic in the sense of the Penal Code when the ability for realistic assessment of one's relation to the external world is substantially impaired. The hallmark is that control over thoughts, emotions, and actions is disturbed.
Severe Mental Retardation
This category was previously covered by the term "insane," but received a separate provision with the legal amendment in 1997. The deciding factor is the degree of mental retardation, not its cause.
Unconsciousness
Unconsciousness, as defined by the Penal Code, includes both complete unconsciousness (coma) and relative unconsciousness where the person can move and act, but their consciousness is so disturbed that they lack awareness of the action and its relation to the external environment. Unconsciousness due to self-induced intoxication does not exempt from punishment.
Young Age
Persons under 15 years cannot be punished. This is the only ground for non-accountability that represents a normal state (a phase in human development) rather than a deviant state.
Procedural Consequences
The question of the defendant's accountability belongs procedurally to the question of guilt in criminal proceedings. If the person was non-accountable at the time of the act, the answer is "not guilty."
In claims of non-accountability, expert assistance is often required, usually from forensic psychiatry. The experts comment on the medical criteria, but it is ultimately the court that decides whether the legal conditions for non-accountability are fulfilled.
Conclusion
Accountability represents a fundamental prerequisite for criminal responsibility in Norwegian law. The rules on non-accountability are based on the recognition that certain individuals lack the necessary psychological prerequisites to be held criminally responsible for their actions. This recognition has both a moral dimension (related to blame and reproach) and a practical dimension (related to the purpose and effectiveness of punishment).
It is important to note that non-accountability does not mean that society is powerless against individuals who pose a danger. To meet society's protective needs, new provisions on special measures for non-accountable offenders posing a danger to others' life, health, or freedom were introduced alongside the revision of the accountability rules in 1997.
