L’expert judiciaire et l’irresponsabilité pénale. Débats et controverses au cours du temps et questions contemporaines

IntroductionSince the creation of the Société Médico-Psychologique, an accumulation of discussions at the national level has resulted in legislative changes, which concern people with mental disorders. Public opinion has now become a stakeholder, prompting us, as judicial experts, to address criminal irresponsibility. The authors wish to give an account of the evolution of the ideas and professional practices in alienism and forensic psychiatry regarding criminal liability, irresponsibility, and the evolution of legislative measures in this realm.MethodsTo do so, they rely on the use of their forensic psychiatric and medico-psychological expertise, which has been effective for many years and remains relevant today, as well as on their clinical and theoretical research activities. The methodology is based on the analysis of language and the critical approach of historical and clinical epistemology.Forensic IssuesThey are examined taking into account the cultural and scientific context from the middle of the 19th century to the beginning of the 21st century. Criminal responsibility and irresponsibility are ancient principles codified in Roman law by Marcus Aurelius and which evolved with the political, social and religious conjunctions of each epoch. Whether the reason given for the recognition of criminal irresponsibility is referred to as madness, degeneration, insanity, dementia, psychic abnormality or discernment, it has always been the subject of research by physicians, alienists, and then psychiatrists. The authors analyze the role of the dissemination of the debates from the creation of the Annales Médico-Psychologiques (in 1843) and of the Société Médico-Psychologique (in 1852), illustrating them with some famous cases in specialized literature. The importance of forensic discussions at the Société Médico-Psychologique animated the end of the nineteenth century and the first part of the twentieth century, contributing to the enrichment of psychiatric semiology and to the opening up of new research, notably methodological. This will lead to an evolution of the conceptions relative to what induces the criminal act and will no longer limit irresponsibility to a diagnosis of insanity or dementia ; the study of psychic functioning will be put forward with the notion of discernment and those of self-control of one's actions. If numerous theoretical debates within the profession have fueled “expert disputes” sometimes disqualifying the role of experts, they remained, however, in the medical and judicial field. Over the past decade, these issues have been broadened to include societal debates around issues related to dangerousness and recidivism. This has become a dominant theme in scientific gatherings, before the eruption into the criminal field, of the increasing role played by victims and victims’ associations. Law No. 92-683 of 22 July 1992 introduced into the Penal Code Article 122-1 (1994 Penal Code) replacing Article 64, by inserting the notions of alteration or abolition of discernment. This distinction has given rise to new difficulties and tensions in expert practice ; the law came into force in 1994. During the 2000s, a series of high-profile homicides involving people with serious mental disorders, sometimes carried out in a recidivist situation, hit the headlines in France. This resulted in a shift in public opinion that led to the law of 25 February 2008 on criminal irresponsibility. The law put an end to the judicial dismissal of cases on the grounds of criminal irresponsibility, by introducing other provisions in the form of security measures (judicial supervision and detention of security). This law creates new interferences between legal procedural issues and psychiatric practice ; it also emphasized the importance of the role of experts by creating new missions, including the expertise of dangerousness. The movement linked to the consideration of the place of victims has been accentuated, both by the objective of obtaining a judgment for the perpetrator of the acts, and by the solicitation of their participation in the successive phases of the procedure. We have recently moved on to questions and controversies about the lack of accountability leading to the law of 24 January 2022. The current article 122 did not specify the origin of the psychic disorder causing the abrogation of discernment, which was interpreted by the Minister of Justice as “a legal void”, which must be “filled with urgency”. Title I states: “Provisions limiting criminal irresponsibility in cases of mental disorder resulting from self-induced psychoactive substances”. All these new provisions, as well as the creation of new incriminations and qualifications, certainly engender debates between magistrates and experts, but they are above all part of a concern of the public authorities about the necessity of setting up “provisions limiting criminal liability in the case of mental disorder”. The interpretation of the contribution of the law to a criminal act remains complex, according to the authors, in terms of psychopathological and etiopathogenic research. Within the context of expert practice, this new law will make it necessary to add new questions for the current missions, and it can only result in an increase in the complexity of these missions and in a risk of confusion in the answers.ConclusionThe authors show that the question of criminal liability does not solicit the same questions and problems in the judicial field (the point of view of the forensic psychiatrist, during the expert examination) or in the societal field with the confrontation with all the representations that are attached both to madness and to the passage to the criminal act, which since the beginning of the twentieth century involves other emerging disciplines. From their point of view, the assertion that a psychic disorder can be of such severity so as to affect the free will and discernment of the perpetrator of a criminal act at the time of the offence, must remain within the domain of psychiatry, even if the new law of 24 January 2022, through several of its provisions, would attempt to eliminate this necessity.     

音乐肌肉放松疗法对预防肝移植术后精神状态异常的效果研究

目的探讨音乐放松疗法对肝移植术后重症监护期间精神状态异常的影响。方法将46例肝移植患者随机分为实验组与对照组各23例，对照组围手术期只接受常规护理，实验组在常规护理的基础上接受音乐肌肉放松疗法，每日对2组患者术后的精神状态进行RSAS评价，并对结果进行比较。结果实验组精神状态异常发生率为21．7％（5／23），明显低于对照组的82．6％（19/23），两组比较差异有统计学意义（P〈0．05）。结论音乐肌肉放松疗法对肝移植术后重症监护期间患者的精神异常有良好的预防作用。     

Examining Harry Thaw’s “Brain-Storm” Defense: APA and ANA Presidents as Expert Witnesses in a 1907 Trial

In 1907, Harry K. Thaw, son of a railroad multi-millionaire, stood trial for shooting and killing architect Stanford White during the performance of a Broadway musical. The defense claimed that Thaw had experienced a "brain storm" causing temporary insanity. The brain-storm defense was ridiculed by professional groups, the public and the press. However, the defense experts were all respected leaders in their fields. They included five past or future presidents of the American Psychiatric Association and American Neurological Association. With no standard terminology in 1907, the much-maligned brain-storm diagnosis was in many respects an appropriate term for a sudden, drastic and temporary defect of reasoning having a physical cause. In spite of a strict test for mental nonresponsibility, the jury did not return a murder verdict.     

The Mad, the Bad, and the Psychopath

It is common for philosophers to argue that psychopaths are not morally responsible because they lack some of the essential capacities for morality. In legal terms, they are criminally insane. Typically, however, the insanity defense is not available to psychopaths. The primary reason is that they appear to have the knowledge and understanding required under the M’Naghten Rules. However, it has been argued that what is required for moral and legal responsibility is ‘deep’ moral understanding, something that psychopaths do not have either due to their lacking empathy or practical reason. In the first part of the paper, I argue that psychopaths do not lack the abilities required for deep moral understanding, although they have deficits in those areas. According the M’Naghten Rules, therefore, psychopaths are not insane. Under a less strict formulation of the insanity plea, like the Model Penal Code, however, there is a good case to be made for their lacking substantial capacity. I argue that because psychopathy is an essentially moral disorder, and because of the nature of psychopathic violence, psychopaths should not be excused under the insanity plea. It would be tantamount to excusing someone for committing a crime because they are bad. Arguably, this contravenes the entire system of law.

癫狂病源流考

从病名、病因病机、证治三方面对癫狂病的源流进行考证。该病或由先天禀赋不足、情志伤及脏腑或气虚血少引起。病机多以气滞、痰结、火郁、血瘀为重心。在对该病治法方面,古今文献记载亦较丰富,或以针刺法,或以移情法,或以夺食法,或以药治之,如重镇安神法、涌吐法、涤痰法、化瘀法、扶正补虚法等。     

Le cadre juridique régissant la responsabilité pénale de l’aliéné mental au Maroc

IntroductionThe lunatic is any person deemed unfit for societal life. Nowadays, insanity is defined as a mental illness. The psychiatric expertise constitutes a judicial procedure designed to determine the insanity with regards to the effects on penal responsibility.ObjectivesThe aim of this work was to highlight the different rules governing penal responsibility of the insane in Morocco. It also aims to emphasize the main function of the expert psychiatrist in determining the mental status of the offender at the time of the crime.MethodThis is a legal analysis of the effects of insanity on criminal liability. It is based on the examination of different rules governing the penal procedure, and the study of different judgments and case treatments either by the judge, the expert psychiatrist or by the institutions where the insane was placed.ResultsTo detail procedural rules of criminal responsibility of the insane in Morocco as well as the role of the psychiatric expertise.DiscussionThe fundamental question is to determine whether the penal responsibility of the offender in the case of insanity is assumed solely by the criminal court, or whether it is mandatory to obtain the opinion of the expert psychiatric. Although the psychiatric expertise is the cornerstone of the procedure, the criminal court has the potential power to judge the different elements of the criminal process, whereas the medical expertise represents only one.ConclusionThe determination of insanity is paramount due to the importance of the effects that it may have on the criminal responsibility of the offender. Even if the legislature cares to determine the conditions and effects of the insanity on criminal responsibility, the boundaries between the judicial and medical expert intervention remain unclear. Therefore, it is crucial to establish a detailed legal schedule to specify the boundaries and limits, considering that both judge and psychiatrist must collaborate to find the way to improvement.     

精神病人刑事责任能力鉴定的专家系统开发

为提高精神疾病司法鉴定的质量，作者采用ＶｉｓｕａｌＢａｓｉｃｆｏｒＷｉｎｄｏｗｓ３．０研制出法定能力鉴定的专家系统（ＥＳＡＬＣ），并用２８１例实际案例验证。结果显示该系统与专家鉴定的一致性较好（Ｋａｐｐａ＝０．６８，Ｐ＜０．０１）。ＥＳＡＬＣ的准确性为９０．０４％，敏感性为８５．６３％，特异性为９６．４９％。上述结果表明，ＥＳＡＬＣ可作为法律精神病学鉴定的辅助工具。