# Do we need a new term for "guilty by reason of insanity"? **URL:** \ **Category:** Great Debates\ **Created:** [August 7, 2006, 8:02pm UTC](https://boards.straightdope.com/t/do-we-need-a-new-term-for-guilty-by-reason-of-insanity/367749 "2006-08-07T20:02:54Z")\ **Posts on this page:** 10\ **Page:** 1
**Author:** ![borowsally](https://avatars.discourse-cdn.com/v4/letter/b/a183cd/32.png) [@borowsally](https://boards.straightdope.com/u/borowsally)\ **Post date:** [August 7, 2006, 8:02pm UTC](https://boards.straightdope.com/t/do-we-need-a-new-term-for-guilty-by-reason-of-insanity/367749/1 "2006-08-07T20:02:54Z")
I’d actually like to see the “reason” phase separated from the “who did what” phase. That is, not consider insanity a defense against presecution, but just something to be considered at the end, at the penalty phase of the trial. And the same could be said for distinctions of first and second degree and manslaughter, etc. Let the first part of the trial decide who did what, and then get into motives and deliberation time and aforethought in the penalty phase. ---
**Author:** ![Rysto](https://avatars.discourse-cdn.com/v4/letter/r/ecccb3/32.png) [@Rysto](https://boards.straightdope.com/u/Rysto)\ **Post date:** [August 7, 2006, 9:09pm UTC](https://boards.straightdope.com/t/do-we-need-a-new-term-for-guilty-by-reason-of-insanity/367749/2 "2006-08-07T21:09:37Z")
Here in Canada, we use the term “not criminally responsible by reason of insanity”. It’s to make the point that the accused did the crime, but can’t be held responsible for their actions. However, you’re objection shows a real misunderstanding of how the justice system works. There are (almost)\* always 2 elements of a crime: the _actus reus_, and the _mens rea_. To prove guilt, the prosecution must show beyond a reasonable doubt that both elements were present. The _actus reus_ is the “guilty act” – the prosecution must prove that the accused actually committed the crime. The _mens rea_ is the “guilty mind” – essentially, the accused must have intended to commit the _actus reus_. I don’t like the phrasing of that last sentence, though, because “intent” often has a legal meaning, and it’s not the only possible element of the _mens rea_. Generally, the three possible classes of _mens rea_ exists: intention, which is deliberately doing the _actus reus_; recklessness, which is deliberately doing something that led to the _actus reus_ happenning, and you knew that the _actus reus_ could result from your actions, even though you didn’t necessarily intend the _actus reus_ to happen(eg killing someone in a street race); and negligence, which is deliberately doing something that led to the _actus reus_, and failing to see beforehand that your actions could lead to the _actus reus_. These three standards have different levels of culpability: intention is the most serious, recklessness is next and negligence is the least serious. If the prosecution cannot prove beyond a reasonable that the _mens rea_ is present, then the defendant must be found “not guilty”. Of course, it’s usually impossible to actually prove what a person was thinking, so the court is allowed to infer it from your actions. If you take careful aim and shoot someone, the court can infer that you intended to do this from your actions. In the case of an insanity defence, if the accused is insane, then they are judged to not have the mental capacity to form the _mens rea_. That’s why, in the US, they are judged to be “not guilty by reason of insanity.” - There are some(but very few) “strict liability” offences. In a strict liability offence, the _actus reus_ is sufficient to show guilt – no _mens rea_ is required. For example, in some jurisdictions statutory rape is a strict liability offence. This means that if the prosecution can prove that the accused had sex with a minor, they are guilty even if they thought that the minor was actually an adult. ---
**Author:** ![Lumpy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lumpy/32/446_2.png) [@Lumpy](https://boards.straightdope.com/u/Lumpy)\ **Post date:** [August 7, 2006, 9:55pm UTC](https://boards.straightdope.com/t/do-we-need-a-new-term-for-guilty-by-reason-of-insanity/367749/3 "2006-08-07T21:55:27Z")
In addition, in many jurisdictions a person judged to be unable by reason of mental defect to contribute to their defense cannot be tried. Their trial is then postponed indefinitely until they are considered competant to stand trial. Usually\* what this means in practice is that if the prosecution agrees with the defense that the accused is a gibbering looney, they won’t bother with the expense of a trial so long as said looney is committed to a mental facility. \*unfortunately prosecutors and district attorneys sometimes have political motives for prosecuting, the mental state of the defendant be damned. And the US is infamous for trying mentally retarded people that in most other countries would be declared too “feeble minded” to stand trial. ---
**Author:** ![coffeecat](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/coffeecat/32/3405_2.png) [@coffeecat](https://boards.straightdope.com/u/coffeecat)\ **Post date:** [August 8, 2006, 12:46am UTC](https://boards.straightdope.com/t/do-we-need-a-new-term-for-guilty-by-reason-of-insanity/367749/4 "2006-08-08T00:46:58Z")
[QUOTE=Rysto] There are some(but very few) “strict liability” offences. In a strict liability offence, the _actus reus_ is sufficient to show guilt – no _mens rea_ is required. For example, in some jurisdictions statutory rape is a strict liability offence. This means that if the prosecution can prove that the accused had sex with a minor, they are guilty even if they thought that the minor was actually an adult. [/QUOTE] What if the accused was insane and thought the minor was actually a poached egg? Do they get convicted anyway? Harsh, if that’s the case. ---
**Author:** ![Bippy\_the\_Beardless](https://avatars.discourse-cdn.com/v4/letter/b/ac8455/32.png) [@Bippy\_the\_Beardless](https://boards.straightdope.com/u/Bippy_the_Beardless)\ **Post date:** [August 8, 2006, 2:57pm UTC](https://boards.straightdope.com/t/do-we-need-a-new-term-for-guilty-by-reason-of-insanity/367749/5 "2006-08-08T14:57:14Z")
How does the idea of _mens rea_ work combined with the idea that lack of knowledge of a law is not a defense? For instance someone who is used to driving in a state where right turns on red are allowed, might easily break the law in a state where it is by default not allowed. If no sign was there to warn the driver how could the driver be found of “guilty mind”? Similarly knife carrying laws can change from municipality to municipality, how is someone who is found to be breaking a local law ever convicted under _mens rea_ if they are from a locality where their action would have been legal? ---
**Author:** ![Common\_Tater](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/common_tater/32/13846_2.png) [@Common\_Tater](https://boards.straightdope.com/u/Common_Tater)\ **Post date:** [August 8, 2006, 10:55pm UTC](https://boards.straightdope.com/t/do-we-need-a-new-term-for-guilty-by-reason-of-insanity/367749/6 "2006-08-08T22:55:01Z")
It would seem that the defense is a good one. The person is nuts, and therefore are not responsible for their actions. However comma if they are deemed “cured” at some future time, perhaps they should be sent back to a regular prison to serve out their sentence. ---
**Author:** ![GorillaMan](https://avatars.discourse-cdn.com/v4/letter/g/50afbb/32.png) [@GorillaMan](https://boards.straightdope.com/u/GorillaMan)\ **Post date:** [August 8, 2006, 10:59pm UTC](https://boards.straightdope.com/t/do-we-need-a-new-term-for-guilty-by-reason-of-insanity/367749/7 "2006-08-08T22:59:50Z")
[QUOTE=Bippy the Beardless] For instance someone who is used to driving in a state where right turns on red are allowed, might easily break the law in a state where it is by default not allowed. If no sign was there to warn the driver how could the driver be found of “guilty mind”? [/QUOTE] If they were completely unaware that they were in a different state, then I can see this being an issue. However, if they just _forgot_ that they were in a different state, then it’s just incompetent driving. ---
**Author:** ![Miller](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/miller/32/481_2.png) [@Miller](https://boards.straightdope.com/u/Miller)\ **Post date:** [August 9, 2006, 1:42am UTC](https://boards.straightdope.com/t/do-we-need-a-new-term-for-guilty-by-reason-of-insanity/367749/8 "2006-08-09T01:42:33Z")
[QUOTE=borowsally] I’d actually like to see the “reason” phase separated from the “who did what” phase. That is, not consider insanity a defense against presecution, but just something to be considered at the end, at the penalty phase of the trial. And the same could be said for distinctions of first and second degree and manslaughter, etc. Let the first part of the trial decide who did what, and then get into motives and deliberation time and aforethought in the penalty phase. [/QUOTE] Why? What defect in the way trials are currently conducted would this remedey? ---
**Author:** ![Rysto](https://avatars.discourse-cdn.com/v4/letter/r/ecccb3/32.png) [@Rysto](https://boards.straightdope.com/u/Rysto)\ **Post date:** [August 9, 2006, 1:51am UTC](https://boards.straightdope.com/t/do-we-need-a-new-term-for-guilty-by-reason-of-insanity/367749/9 "2006-08-09T01:51:19Z")
[QUOTE=Bippy the Beardless] How does the idea of _mens rea_ work combined with the idea that lack of knowledge of a law is not a defense? For instance someone who is used to driving in a state where right turns on red are allowed, might easily break the law in a state where it is by default not allowed. If no sign was there to warn the driver how could the driver be found of “guilty mind”? Similarly knife carrying laws can change from municipality to municipality, how is someone who is found to be breaking a local law ever convicted under _mens rea_ if they are from a locality where their action would have been legal? [/QUOTE] I believe that it would usually come under the “negligence” class – by failing to understand the law, you failed to foresee that your actions would cause the crime to occur. That’s little more than a WAG, though, so anybody go ahead and correct me if I’m wrong. ---
**Author:** ![Oakminster](https://avatars.discourse-cdn.com/v4/letter/o/77aa72/32.png) [@Oakminster](https://boards.straightdope.com/u/Oakminster)\ **Post date:** [August 9, 2006, 3:18am UTC](https://boards.straightdope.com/t/do-we-need-a-new-term-for-guilty-by-reason-of-insanity/367749/10 "2006-08-09T03:18:47Z")
[QUOTE=Bippy the Beardless] How does the idea of _mens rea_ work combined with the idea that lack of knowledge of a law is not a defense? [/QUOTE] The deal with _mens rea_ is whether or not you intended to commit the act thant constiutues the crime. Whether you know that act is illegal or not is irrelevent. In the examples you gave, the person going right on red obvioulsy intended to go right on red. The person carrying the blade probably intended to carry it. Other defenses may be available depending on the circumstances.