Psychology for Writers
The Insanity Defense
Hello all.
Welcome back for our latest installment in Psychology for Writers, a series in which I (a psychology professor and newbie fiction author) present information about topics in psychology that might be relevant to writers in a way that hopefully you will find helpful. In the previous article, we looked at how defense mechanisms can make characters more realistic, and how they can be used to show character growth. This time, I want to sort through some myths and truths about a popular trope: the insanity defense.
Rachel Dawes: “This is the third of Falcone's thugs you've had declared insane... and moved into your asylum.”
Dr. Crane: “Well, the work offered by organized crime must hold an attraction to the insane.”
— Batman Begins
We’ve all seen this one. The hero defeats the villain, and it is clear that the villain has some kind of – to use a technical psychiatric term – screw loose in the coconut. The next time we see the villain, he is securely ensconced in a mental institution, possibly in a padded cell, and possibly in a straightjacket. However, the picture painted for us by the media is wrong more often than it is right. If you want your story to have something resembling a connection to reality, read on and learn about the term “insane.”
1. What “Insane” Actually Means.
To begin with, the word “insanity” is not a clinical term. If a person has been diagnosed with a mental illness, we tend to say exactly that: the person has been diagnosed with a mental illness. “Insane” is a legal term, and it has a specific meaning. A basic principle of the law is mens rea, which translates to “guilty mind.” In order to be found guilty of a crime, the person has to understand the nature and quality of the action taken, and choose to do it anyway. For example, if I shoot somebody, I know that shooting people results in injury or death. I know that shooting somebody is morally wrong and forbidden by law. I know that I will get in serious trouble if I shoot that person. A person who does not understand the nature and quality of the action cannot be held responsible for it. This is why we do not criminally prosecute a 1-year-old who picks up a loaded pistol that some idiot left lying around and shoots a person. Instead, it is the idiot who left a loaded pistol where a toddler can get it who will be in trouble.
A person can be found Not Guilty By Reason of Insanity if that person commits a crime, but there is some kind of mental condition that eliminates mens rea by rendering that person unable to understand the nature and quality of the action. (I am writing this from my office in South Carolina; click here to see the legal criteria for an insanity defense in this state. The language used there is pretty standard.)
Just having a mental illness is not enough to qualify for an insanity defense. A person who is depressed, or has a spider phobia, still knows right from wrong, and legal from illegal. I have seen some people try to get around this by claiming that there is a difference between “clinically insane” and “legally insane,” but those people are wrong. There is no such term as “clinically insane.” Most people with mental illnesses are sane.
This distinction is why some serial killers, for example, are found to be sane. Obviously, a person who enjoys murdering victims has a screw loose in the coconut, but most serial killers know that murder is morally wrong and against the law. They choose to do it anyway because they like it. Killers like Jeffrey Dahmer, John Wayne Gacy, and Ted Bundy were all determined to be sane, and therefore guilty of their crimes, and sent to prison. On the other hand, Ed Gein (who inspired such fictional characters as Norman Bates, Buffalo Bill, and Leatherface) was diagnosed with schizophrenia, found not guilty by reason of insanity, and spent the rest of his life in a mental hospital.
2. Myths About the Insanity Defense
Between uninformed fiction writers, and uninformed political commentators, there are several myths about insanity. To begin with, there are those who will claim that an insanity defense is a common legal tactic, and easy to pull off. It’s not. Less than 1% of criminal trails involve an attempt at an insanity defense, and these attempts fail 75% of the time. And of those one-quarter-of-one-percent where the insanity defense is successful, between 70% and 90% (depending on which study you read) of the time, the prosecution and defense both agree that the accused is insane. So the thrilling fictional courtroom dramas, in which we see dueling experts arguing back and forth about the accused’s mental status, almost never happen.
Another myth that you might encounter is that having been found not guilty by reason of insanity means that the perpetrator gets off easy, spending a couple of months relaxing, having his hand held by a friendly psychiatrist in a minimum-security mental health facility, before walking free as a bird. In reality, people who are found not guilty by reason of insanity typically end up committed to psychiatric facilities for longer than they would have spent in prison if they had just been found guilty. And at those facilities, they have fewer freedoms than those afforded to prisoners. A high-security institution is no day spa.
3. The Process
If an attempt at an insanity defense is going to be made, a clinical psychologist with expertise in forensic psychology will meet with the accused for an evaluation. The psychologist will use a tool such as the Rogers Criminal Responsibility Assessment Scales, which helps assess symptoms of mental illness, cognitive ability, behavioral self-control, and malingering (likelihood that the person is faking it). The psychologist is not the one who determines if the accused is insane, and so not guilty; that happens in the court, taking the psychologist’s report into account.
If the accused is found not guilty by reason of insanity, the criminal trial ends, and the next step is a civil commitment hearing. That is where the decision is made to send the perpetrator to an appropriate psychiatric facility. There he will stay, until it is determined that the mental illness is under control, and he is no longer a danger to himself or others. Even then, the perpetrator does not just walk away. Take the example of Vincent Li, the Canadian man who beheaded a fellow passenger on a Greyhound bus in Manitoba. Li was found not criminally responsible for the killing and sent to a hospital. After showing progress, Li was allowed supervised walks on the grounds of the hospital. This went well, so the next step was supervised visits into town. Later, they tried a few unsupervised 30-minute visits, and he did well, so they went to unsupervised day trips (carrying a cell phone so he could be tracked). Then he was transferred to a supervised group home. Only after almost ten years of consistently showing himself to be trustworthy was Li finally discharged. Statistically, the recidivism rate for people in Li’s situation is far less than the rate for those who serve time in prison, so we can actually be more confident that Li will not attack anybody else than we can in the case of a sane criminal.
I hope that you found this helpful, and that it gave you some ideas about possible ways to add realism to your characters’ legal/psychiatric troubles. If you liked this, click that subscribe button so that you don’t miss the next installment. If you have questions or comments about the insanity defense and how it has been portrayed in the media, please post in the discussion section below.