Criminal Responsibility in Law: Psychosis, Intellectual Disability, and Unconsciousness

In Norwegian criminal law, accountability is a fundamental prerequisite for criminal responsibility. The Penal Code § 44 states that certain mental conditions result in the perpetrator not being punishable. This article provides a thorough introduction to the three main categories of non-accountability: psychosis, severe mental retardation, and unconsciousness, as well as the forensic psychiatric process and diminished accountability.

Psychosis as a Basis for Non-Accountability

The Medical Principle

Norwegian criminal law is based on the medical principle concerning psychosis as a ground for non-accountability. This means that the medical diagnosis is decisive, not whether any connection can be demonstrated between the mental disorder and the criminal act. Once the medical psychosis diagnosis is established, the legal non-accountability is granted.

The rationale for this principle is that one can never be sure that the actions of the psychotic person are normally motivated, even if they might appear so, and that even the possibility of a pathological motivation should be enough to exclude punishment.

The Concept of Psychosis

In the 1997 amendment, the term "insane" was replaced with "psychotic" in the Penal Code § 44. The psychosis concept encompasses a wide variety of conditions, differing both in causes and manifestations. The central characteristic of a psychosis is the lack of ability to realistically assess the patient's relationship to the world.

The concept of psychosis includes, among other things:

• Diseases with detectable organic causes (such as general paralysis following syphilis)

• Schizophrenia and manic-depressive illness (where hereditary traits play a role)

• Reactive psychoses (which can be triggered by particular stresses)

• Senility (dementia senilis) when the impairment is sufficiently profound

The symptoms vary significantly. Psychosis can attack intellectual functions, emotional and volitional life, or manifest as sensory deceptions (hallucinations) or systematic delusions.

Modern Psychiatric Treatment and the Assessment of Non-Accountability

Modern psychiatric treatment methods with medications and more frequent discharges have made the boundary between being psychotic and non-psychotic more fluid. A person suffering from a psychosis may, for example, be treated with medications that keep them symptom-free or nearly symptom-free.

If a person in a well-regulated medication phase commits a crime, specific assessment questions arise. If the crime is of a serious nature, this can itself indicate a psychotic breakthrough at the time of the act. More trivial crimes do not provide a similar indication.

Severe Mental Retardation

The Penal Code § 44 second paragraph states that a person who was "severely mentally retarded" at the time of the act cannot be punished. This is a congenital or early childhood-acquired deficiency in the intellectual realm, not a disease as with psychoses.

Previously, more pronounced cases of mental retardation were labeled as mental deficiency and included under insanity in § 44. In the 1997 amendment, mental retardation was specifically mentioned.

In forensic psychiatric practice, the boundary has traditionally been drawn around an intelligence quotient (IQ) of 50, equivalent to a mental age of eight years. However, this was not practiced slavishly, as personality and the ability to function socially were also given great importance. In the preparatory works for the 1997 amendment, it was suggested that the threshold should be raised somewhat, to an IQ around 55.

It is important to note that even if a person does not meet the criteria for non-liability under § 44, their intellectual development may have significance when assessing subjective guilt (intent or negligence).

Unconsciousness

Unconsciousness is understood more broadly in Penal Code § 44 than in everyday language. While in everyday language, it refers to a complete coma, in the Penal Code it also includes "relative unconsciousness": The person has physical mobility and responds to certain external stimuli but is otherwise blind and deaf to their surroundings and acts without the restraint of counterthoughts.

Examples of unconscious states in the legal sense include:

• Sleepwalking states

• Hypnotic trance state

• Fever deliriums

• Sleep drunkenness

• Epileptic twilight states

• Consciousness clouding after a concussion

• Hysterical seizures

• Pathological alcohol intoxication

Unconsciousness results in non-punishment regardless of whether it is self-inflicted or not, with the exception of unconsciousness due to self-inflicted intoxication (Penal Code § 45).

Unconsciousness will often exclude intent, but this is not unconditional. Even if the perpetrator was so confused or dazed they are characterized as "unconscious" at the time of the act, they may have perceived the circumstances that make the act punishable, which is sufficient to establish intent.

Forensic Psychiatric Examination

When there is doubt about the defendant's mental state at the time of the act, experts are appointed to conduct a forensic psychiatric examination. In a standard observation, there are usually two experts.

The process usually follows these steps:

1. The prosecution may request a preliminary psychiatric report

2. The experts conduct a complete examination and issue a written report

3. The forensic commission reviews the report

4. The experts, or at least one of them, testify orally during the main hearing

The implementation of the medical principle means that the psychiatric expert's statements become almost binding for the judge on the issue of non-accountability. Legally, the experts are advisors, and the court is formally free in its decision.

Burden of Proof Questions

In forensic psychiatric practice, a person is only declared psychotic if the condition is considered certain. If the question is doubtful, the conclusion is "not psychotic," based on the idea that the illness must be proven, not the absence of illness.

The court must, however, follow the usual principle in criminal cases that the doubt should benefit the defendant. If the premises in the psychiatric report show that the question of mental state is doubtful, the court must acquit.

The Supreme Court in Rt. 1979 s. 143 stated that the same level of proof required for accountability cannot be demanded for proving that the defendant committed the act they are charged with. But the court was not simply satisfied with a preponderance of probability being sufficient.

Diminished Accountability

There are several transitions between normalcy and abnormality. Penal Code § 56 gives courts the ability to reduce the punishment below the usual minimum and to a milder form of punishment in certain cases of diminished accountability.

Under § 56 letter c, this applies when the offender at the time of the act:

1. Had a severe mental disorder with significantly impaired ability to realistically assess their relationship to the world but was not psychotic

2. Was mildly mentally retarded

3. Acted under a strong disturbance of consciousness not caused by self-induced intoxication

The first group closely relates to psychosis cases but does not require a complete inability to realistically assess; only a severely impaired ability. The second group is close to the rule on non-accountability for severe mental retardation, while the third group continues the earlier law on "strong impairment of consciousness."

While the question of acquittal under § 44 falls under the issue of guilt, reduction of punishment under § 56 concerns the sentencing issue. This is significant for the court process, especially in jury cases.

Principled Discussion on Non-Accountability Rules

Objections to the Medical Principle

Several objections can be raised against the medical principle:

1. Even if a person is psychotic, the mental illness does not necessarily interfere equally in all areas of mental life. In some cases, it may be unlikely that there is a connection between the mental disorder and the criminal act.

2. Declaring a person legally irresponsible is not only to their advantage but can also be detrimental. Many people with mental disorders can manage well in free life, but if they are declared legally irresponsible, their freedom may be restricted.

"Antipsychiatry"

In the 1960s and 1970s, the psychiatric concept of illness faced strong attacks, the so-called "antipsychiatry" movement. Critics claimed that psychiatry is based on a misleading analogy with physical illnesses. The psychiatric diagnosis was described by some as labeling behavior considered morally reprehensible under the guise of objectivity.

In Norwegian legislation and forensic psychiatric practice, this criticism has had little impact. It has also left no trace in the preparatory documents for the 1997 law revision.

Conclusion

Norwegian criminal law is based on the medical principle regarding psychosis and mental retardation as grounds for non-accountability. This means that the medical diagnosis is decisive, not whether a connection between the condition and the criminal act can be proven.

The non-accountability rules in § 44 are intended to be exhaustive by the legislator, but extraordinary situations may arise where applying punishment would seem offensive to the sense of justice, without any of the law's recognized grounds for non-punishment being applicable.

For individuals who fall within the transitional area between normalcy and what qualifies for non-accountability, Penal Code § 56 provides an opportunity for reduced punishment. This consideration ensures that the reduced moral responsibility corresponds to a reduced penalty.