The finding of the panel which observed Oscar Pistorius, reported by Prosecutor Gerrie Nel, is both surprising, and unsurprising – it is both right and wrong. This is because nobody can say whether Oscar Pistorius suffered, at the relevant time (of the alleged offence), from a legally significant “mental illness or defect”. The concept is undefined in our law. The effect is that no one can know whether a “mental illness or defect” was present. The first problem is that a “mental illness or defect” is a legal concept, distinguished in law, from “mental disorders” that are the concern of psychology and psychiatry. The law insists that a “mental disorder” does not necessarily amount to a “mental illness or defect”. Courts must ultimately decide – and yet there exists no criteria upon which to base this decision.
I attach a working draft of a paper that sets out this argument at length – constructive comments welcome. It argues that the requirement of “mental illness or defect” in our law, as a threshold requirement for a defence of “pathological incapacity” (the insanity defence) is almost entirely meaningless, or that such meaning as it has is unfounded, ill considered, or a distraction, and that it is, is in any event, apparently redundant. Nobody can say whether a “mental illness or defect” was present or not. I argue that we must face this problem, and that the best solution is to abolish the requirement from our law.
The defence of pathological criminal incapacity requires, as a threshold criterion, that an accused suffered from a ‘mental illness or defect’ at the relevant time. Analysis of what this threshold criterion means reveals that it is almost entirely meaningless, or that such meaning as it has is unfounded, ill considered, or a distraction, and is in any event, apparently redundant. It seems instead that the criterion is giving expression to surreptitious fears regarding the dangerousness of persons who may succeed with this defence. I recommend that we drop the criterion as intellectually dishonest and that we no longer distinguish pathological from non-pathological incapacity and that we ask what appears to be the real question: about dangerousness. We can ask this question in the correct context, that of the civil law which is already designed to address this question. This enquiry could follow automatically upon a successful incapacity defence. Finally I argue that there are several associated benefits to doing this, including that this would allow for all persons who claim incapacity to be treated equally, that the dubious ‘reverse burden’ placed on accused persons who attribute their incapacity to a mental illness or defect, which is not placed on those who claim incapacity but do not attribute it to a mental illness or defect, is withdrawn. Also it will introduce further equality in that the dangerousness of all accused who succeed with an incapacity defence will be considered. Currently dangerousness is surreptitiously presumed in respect of those who attribute their incapacity to a mental illness or defect, but it is not a question which is currently considered in respect of accused who do not attribute their incapacity to a mental illness or defect – and who currently receive, if successful, an unqualified acquittal.

  1. LCB says:

    Thanks for pointing out with clarity that the SA law cannot define insanity currently. I think common sense is enough in this case to categorically determine that Oscar Pistorius was in fact insane. How?
    He acted in a way which in fact killed a woman, through, as the judge has presented, his thinking and acting by gross negligence or grossly reckless behaviour.
    This means Mr Pistorius’s thinking and acting by the most serious omission of consideration – omitting thought of whether or not he may kill someone in shooting a gun four times in the direction of a body (albeit toward the lower portion). It seems to me this is always a probable issue of insanity, even when not associated with other considerations of the mind.
    I do believe it is possible and therefore a reasonable conclusion that Mr Pistorius did not forsee that he would kill someone. However, for any other defendant who did not have a mental affection, that would only leave me to consider it likely that this person was insane at the time of the fatal act. But for this particular defendant, Mr Pistorius, where the fatal act is borne out from a mental affection from childhood, basically – how can this NOT be insanity?
    The potential to kill someone is a huge thought, a massive thought, to leave out when one fires a gun four times at an assumed body one cannot see. It is so huge, it is likely to be viewed as insanity without further associations in the longer term.
    However, when this is known in the context of a very significant long term mental affection which seems to have at least played a major role (or otherwise was the only precipitant) in that the short term, fatal act was made, it seems clear this is insanity expressing itself at a particular time.
    You have a person. He presents with really substantial social paranoia about safety and security since childhood, unrelenting, and associated with family and identity and life and the country which he is from and in which he lives. Others have security issues in South Africa, but this is very abnormal even in comparison with them. He trains himself with guns, for security, and is very attatched to them. He stores a gun under his bed each night, despite living in a gated community with guards, despite that history has shown his home to be one of the safest. He is known to have made references to imagined aggressors against his own safety whilst training, and has been involved in impulsive, improper use of the guns. A conclusion – he does not have himself under control?
    It must be so – this is evidenced in the killing of Ms Steenkamp. When Mr Pistorius kills a defenceless woman behind a door in his own home, precisely because of this mental affection, paranoia from security concerns, that must be an expression of a mental affection so bad it is an illness – and insanity in law.
    AT LEAST – Oscar Pistorius was insane at the time of the fatal act (but because of the long term mental affection). But of course, it is probably more apt to think of him with a serious mental defect in the long term, such that HAS resulted in death and COULD AGAIN result in further bodily harm or death.
    Who is to say bodily harm would not result again from Mr Pistorius’s mental paranoia affection? Why think it’s over? That it must be over is an irrational rather than rational judgement to make as a final judgement.
    Not diagnosed as sick, not able to think himself as sick and deal with it, not receiving treatment – the man’s insanity is hidden. Thus the possibility of further harm is perhaps more.
    This description only seems to me attributable to an issue of insanity. Not unlikely to be repeated – certainly this is not an unforeseeable possibility – he is being wronged by being treated as sane.

  2. Awesome post.
    I vaguely recall Baudrillard Simulacra and Simulation, where he states the work of psychologists and medicine ends in the metaphysical questioning of sanity. He refers to the military protocol where if one acts crazy, one is crazy.
    It’s interesting to see the ever pervasive danger of incapacity defenses. Keen to read your paper.

  3. Chris says:

    INTERROGATING THE LIE. The questions the prosecution puts to the witness this week are all to do with what could be a lie. The witness explained the physiological reactions to startles, names the sounds of the window, the door, the magazine rack. Nell goes over it and over it. But could he, at a point, turn it around — and take it from the point of view that Oscar was not reacting to fear, but rather in anger and was going after Reeva with the intention to kill her. Then ask of the witness what would his physiological reactions be to that. Question him on both scenarios. Why doesn’t he?

    • James Grant says:

      Excellent questions – regretably I missed alot of the Derman cross examination. I though ( old be wrong) that Nel did ask this. Either way, you are right, the startle response could explain both versions.

  4. Jason says:

    There is that video that has been released showing OP re-enacting the shooting scenes etc. In the video he seems very business-like. What I don’t understand is why there is a need to build multiple sets of the bedroom and to go over and over what happened or what may have happened with various consultants and advisors. In Britain I am sure the suspect wouldn’t be allowed to do this and would unlikely have been given bail in the first place. Surely he either remembers what happened or he doesn’t. In psychology this type of incident can generate what is known as a flashbulb memory.

  5. Vannyi says:

    Professor Grant,
    I found something really interesting in the psychiatric evaluation that Mr. Pistorius underwent.
    Hasn’t Mr. Pistorius violated the conditions of his bail and if so, I wonder if anyone has picked up on this?
    From Oscar Pistorius’ bail hearing
    At 2 hours 26 minutes 43 seconds
    Accused will refrain from prohibitive substances and/or alcohol until the conclusion of this case.
    From Oscar Pistorius’ psychiatric report by Dr. Scholtz
    On Page 16, line 28
    Mr. Pistorius feels he has been drinking more since the incident he is being charged for, mainly because he isn’t in training.

  6. Harriet says:

    To make an additional point: the parameters of what the psychologists feel qualified to report on in the Pistorius case, as read out in court today (July 2nd) by Mr Roux, seem to me astonishingly broad. The psychologists’ report (as quoted by Roux) makes all sorts of statements about the nature of the Pistorius-Steenkamp relationship, such as that he was not abusive, dealt well with anger etc etc. How can they possibly know what went on in that specific relationship? Even if they make a finding that he does not seem now, one year on, to have a certain type of personality associated with domestic violence, it seems to me simplistic and reductive that they would even consider extrapolating from that any sweeping conclusions concerning a specific relationship, when one of the participants in that relationship is not here to relate her experience.

    • James Grant says:

      Fair comment Harriet. It reminds me of a argument that is often made by murder accused: it’s not in my character to kill. The problem is that most people who kill, only kill another person once in their lives. Another rather dark view of human nature is that most people are able to kill and we don’t yet know how to identify those who simply cannot – if there are any such people.

      • Harriet says:

        I absolutely agree. And I think that psychology, as a subject area, perhaps cannot mesh very well with a legal system, because there are too many aspects to the individual human psyche that cannot be pinned down with sufficient certainty to satisfy a court of law. This comes back to the subject of your article, of course, and then the question remains: how can satisfactory legal definitions be reached, then, since the legal system must needs deal with matters of psychology? I certainly think that a psychological report submitted to a court should be more tentative, and should put more emphasis on the complexities and unknowns of an individual case, than the one that seems to have been submitted in this case. C.G. Jung wrote: “Nobody is absolutely right in psychological matters. Never forget that in psychology the means by which you judge and observe the psyche is the psyche itself. Have you ever heard of a hammer beating itself? In psychology the observer is the observed. The psyche is not only the object but also the subject of our science. So you see, it is a vicious circle and we have to be very modest. The best we can expect in psychology is that everybody puts his cards on the table and admits: ‘I handle things in such and such a way, and this is how I see them’. Then we can compare notes.”

      • jason says:

        Following on from the discussion so far: Psychology is not science in the “proper” sense. It may make claim to being a “proper” science with “objective” “physical” laws – but it isn’t. Nor should it be treated as such – though of course it is in the interests of SOME in the Psychology Profession to make it out as being so.
        Hence ultimately they need to be very careful in given legitimation to certain statements. From what has been discussed here, especially by Harriet, they haven’t.
        ps I have not read the report and my comment is related to this discussion only.

  7. Harriet says:

    Very interesting paper – clearly argued and convincing. Many thanks for posting it.

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