IJLP-00996; No of Pages 8 International Journal of Law and Psychiatry xxx (2013) xxx–xxx Contents lists available at ScienceDirect International Journal of Law and Psychiatry Depressed but not legally mentally impaired Meron Wondemaghen Monash University, Melbourne, Australia a r t i c l e i n f o a b s t r a c t Available online xxxx This article examines the mental impairment (insanity) defense in the Australian state of Victoria and argues that the defense is successful only when offenders suffer from psychotic mental illnesses. This raises the question Keywords: about how non-psychotic offenders are dealt with by the courts when they claim ‘mental impairment’ for serious Mental illness acts of violence such as homicide, particularly when a relatively large number of perpetrators involved in homi- Violent crime cide suffer from non-psychotic illnesses like depression. The analysis shows that depressive illnesses do not reach Psychotic illness the threshold for mental impairment (legal insanity) such that they mitigate violent criminal behavior, although Mental impairment Depression they can, arguably, diminish culpability. This article draws upon existing literature, qualitative analysis of two court cases and semi-structured interviews with four legal representatives to make its conclusions. © 2013 Elsevier Ltd. All rights reserved. 1. Introduction circumstances. The defense may bring evidence of automatism to ne- gate voluntariness, which may occur without the volition of the accused According to the Diagnostic and Statistical Manual of Mental Disor- in circumstances of an accident, a reflex action, or while in a state of im- ders, Fourth Edition, Text Revision (DSM-IV-TR), major depressive disor- paired consciousness (Bronitt & McSherry, 2010, p. 187). The concept of der, more commonly known as depression, is a clinical disorder mens rea can also be challenged when it comes to individuals suffering characterized by one or more major depressive episodes (American from psychiatric illnesses, because these individuals may lack the re- Psychiatric Association [APA], 2000, p. 369). A major depressive episode quired intent for culpability and the law can make an exception in is in turn defined as ‘a period of at least two weeks during which there is these cases by exculpating the concerned defendants from criminal either depressed mood or the loss of interest or pleasure in nearly all responsibility. activities’ (APA, 2000, p. 349). The criminal law does not treat individ- Outside this framework, the law can exculpate mentally ill offenders – uals with a diagnosis of depression in the same manner as those with under the mental impairment defense – on the basis that they did not psychotic mental illnesses, such as schizophrenia, when assessing an know the nature and quality of their conduct or whether the conduct offender's mental impairment. The current study explores this issue was wrong. Mental impairment – which is a legal term that refers to (in Victoria) and attempts to determine why this may be so. The find- legal insanity rather than a medical condition – can be considered at ings will be applicable to other Australian states as well as all other two distinct stages of the legal system. At law in Victoria, mental impair- liberal democratic societies that practice the common law based on ment can be considered before trial, in terms of whether the offender is the M'Naghten elements, and have similar legal systems and criteria fit to be tried (or fit to plead), and raised during trial, in relation to the for what constitutes ‘mental impairment’. time at which the offense was committed. Mental illness, on the other hand, can be relevant after trial and during sentencing considerations 2. The current legal framework in Victoria because the law recognizes an offender's mental health state at the time of sentencing regardless of culpability. In criminal law, the concept of criminal responsibility assumes that The purpose of a trial in which mental illness is an issue is to deter- individuals have the ability to make rational choices and are able to mine whether the offender was mentally impaired at the time of their differentiate between right and wrong. In order to find a defendant alleged crime due to a disease of mind (a legal term with no medical rel- guilty of a crime or criminally responsible, the prosecution must prove evance). The basis for the modern English law (and therefore the beyond reasonable doubt that the act is committed voluntarily and Australian common law) of ‘mental impairment’ derives from the intentionally. That is, the required mens rea (intent to harm) and actus M'Naghten case in 1843, in which Daniel M'Naghten shot and killed reus (volition to harm) must be present. If one of these elements is not the Prime Minister of England's private secretary, mistakenly thinking satisfied beyond reasonable doubt, the accused is fully acquitted. Both he was the Prime Minister. M'Naghten was under the delusion that he the actus reus and mens rea can be challenged under different was being persecuted by the British Government. The M'Naghten1 E-mail address: meronw@live.com. 1 8 ER 718, [1843] UKHL J16 (http://www.bailii.org/uk/cases/UKHL/1843/J16.html). 0160-2527/$ – see front matter © 2013 Elsevier Ltd. All rights reserved. http://dx.doi.org/10.1016/j.ijlp.2013.11.010 Please cite this article as: Wondemaghen, M., Depressed but not legally mentally impaired, International Journal of Law and Psychiatry (2013), http://dx.doi.org/10.1016/j.ijlp.2013.11.010 2 M. Wondemaghen / International Journal of Law and Psychiatry xxx (2013) xxx–xxx rule states that to establish a defense on the ground of insanity, it must manslaughter rather than murder, leading to a determinate sentence be clearly proven that at the time of committing the act: instead of indefinite detention at a psychiatric facility. Victoria does not recognize the partial defense of diminished responsibility. This bears a) The party accused was laboring under such a defect of reason, from a certain implications for mentally ill offenders tried in this jurisdiction disease of the mind, as not to know the nature and quality of the act because if the courts consider their illness to fall short of mental being committed or impairment, these offenders cannot employ this alternative defense. b) If the accused did know it, that he or she did not know that the act Consequently, rather than the option of a determinate sentence for man- was wrong. slaughter through this partial defense, mentally ill offenders in Victoria The Crimes (Mental Impairment & Unfitness to be Tried) Act 1997, are faced with either the possibility of indefinite detention with a nomi- 1997 (CMIA) of Victoria replaced the common law defense of insanity nal sentence of 25 years if found ‘not guilty because of mental impair- with the defense of mental impairment in 1997. Section 20 (1) states ment’, or a conviction of murder with a maximum term of a life sentence. that the defense is raised if, at the time of the crime, the person was To examine the operationalization of the defense in Victoria, two case suffering from a mental impairment so that: studies were selected: the Donna Fitchett and Arthur Freeman cases. a) He or she did not know the nature and quality of the conduct or 3. Methodology b) He or she did not know that the conduct was wrong. Knowing the ‘nature and quality’ of the conduct refers to the physi- The author qualitatively examined court transcripts of the two cases cal element of the conduct or the estimation and understanding of the as the first method of collecting data, analyzing the main legal princi- consequences of the conduct; this includes, for example, having the ples, arguments and procedures involved in the prosecution of violent capacity to know and understand the significance of killing (Bronitt & mentally ill offenders. Because the Fitchett and Freeman cases were McSherry, 2010, pp. 245–247). The second alternative applies to recent and high profile, and both offenders claimed mental impairment circumstances in which the accused did not know the conduct was due to their depression, they were selected as suitable for examining wrong. Under section 20(1) b of the CMIA, this is explained as: ‘he or how the defense has operated since the introduction of the CMIA in she could not reason with a moderate degree of sense and composure cases in which violent offenders with depression employ it, and what about whether the conduct, as perceived by reasonable people, was amounts to the legal test of ‘mental impairment’. wrong’. To add contextual insight not available from documentary analysis, At a national level, the Model Criminal Code was formalized in 1995 the author (who is also experienced in interviewing crime reporters and was intended to serve as a model for all Australian jurisdictions and parliamentarians) conducted one-on-one interviews with legal (McSherry, 1997). In addition to the two elements of the defense representatives as the second method of gathering data. As such, the described above, the Model Criminal Code has a third limb (a volitional findings obtained from the interviews are examined in the ‘Discussion’ component) not adopted in Victoria: section below. Participants were informed by way of an explanatory form of the purpose of the study without detailed elaboration, so that c) The person was unable to control his or her conduct. they were not led in any particular direction when answering questions. Because this third limb is not part of the Victorian legislation, in the A prosecutor and three defense lawyers were interviewed. They were state of Victoria, mental impairment is determined upon satisfying one selected based on their experience, knowledge and/or expertise in deal- of the first two cognitive-based limbs of the defense. The question of ing with matters relating to mentally ill offenders. The interviewees had mental impairment may be raised by the defense or prosecution [s 22 extensive experience either prosecuting or defending mentally ill (1)], and is determined by a jury on the balance of probabilities [s21 offenders, including Freeman and Fitchett. Both the participants' experi- (2)], rather than on the criminal standard of ‘beyond reasonable ence in their professional roles and their involvement in the selected doubt’. If the defense is successful, the person is found ‘not guilty be- case studies facilitated a range of responses that were both general cause of mental impairment’ [s20 (2)]. Under this verdict, the defendant and specific to the case studies in question. Two participants agreed to may be liable to supervision orders or may be released unconditionally be identified by name: Chief Crown Prosecutor Gavin Silbert and De- [s23 (b)]. Once the court finds an accused liable to supervision, it can, fense Counsel Patrick Tehan. The two other defense lawyers who did under s26 of the CMIA: not want to be identified will be referred to as Lawyer1 and Lawyer2. The methodological approach allows for a comprehensive under- a) Make a custodial supervision order (where treatment takes place in standing of how the law deals with violent offenders affected by depres- a secured place). sion. That is, it allows for the analysis to progress from documentary and b) Make a non-custodial supervision order (where treatment takes interview analysis to identifying what occurs in the courts when men- place while living in the community under the conditions of the tally ill individuals perpetrate serious violence; the key legal procedures, order). principles and concepts employed in the context of these cases; and the The Victorian legislation does not offer a definition of mental impair- implications that may follow from the use of these principles for ment. In this regard, it is the only Australian state that employs the offenders affected by depression. defense without a definition of the components of mental states that amount to mental impairment. In Queensland and Tasmania, the 4. Results defense can raise ‘mental impairment’ or ‘insanity’ on the basis of an offender having had a ‘mental disease’. In the Northern Territory, West- The following sections examine how the mental impairment ern Australia, the Australian Capital Territory and South Australia, ‘men- defense was used in the Fitchett and Freeman cases. In doing so, they tal impairment’ (or ‘mental incompetence’ in South Australia) may be explore the application of the two limbs of the defense in the raised on the basis of mental illness, brain damage, intellectual disability Victorian legislation: not knowing either the nature and quality or the or senility. In New South Wales, the defense is called ‘mental illness’ and wrongness of a criminal act. can be raised on the basis of a ‘disease of mind’ (Bronitt & McSherry, 2010, pp. 240–241). If an offender is tried in New South Wales, Queensland, the 4.1. The Fitchett case Northern Territory or the Australian Capital Territory, mental illness may also be taken into account through the defense of diminished responsibil- The agreed facts of the case taken from Lexis-Nexis CaseBase data- ity, which is available only for homicide cases (Bronitt & McSherry, 2010, base, R v Fitchett [2009] VSCA 150, were as follows. On the morning of p. 315). If this defense is successful, the offender is convicted of Tuesday 6 September 2005, Donna Fitchett ran a few errands, returned Please cite this article as: Wondemaghen, M., Depressed but not legally mentally impaired, International Journal of Law and Psychiatry (2013), http://dx.doi.org/10.1016/j.ijlp.2013.11.010  M. Wondemaghen / International Journal of Law and Psychiatry xxx (2013) xxx–xxx 3 home, drugged her sons with large amounts of benzodiazepines and put an offender at the time of the crime is usually derived from information them to bed. After the drugs failed to take the effect she had anticipated, gathered immediately before and after the crime (R v Fitchett transcript, she used a sock to strangle one of the children. The other woke up grog- 2008, p. 340). Information related to the extant circumstances before gy and delirious, and wet himself. Fitchett changed him into clean the crime would ideally be obtained from a psychiatric evaluation of clothes, put him back to bed and then placed a pillow over his face to the offender, but no such evaluation was available in this case. There- stop him from breathing. The family dog tried to intervene, but Fitchett fore, based on the accounts provided by Mr Fitchett, Donna Fitchett's took it outside before returning and strangling her second son with a sister and Fitchett's neighbor of the circumstances prior to the offense, sock. Approximately 3 h after killing her children, she swallowed a all of which attested to Ms Fitchett's distress and bizarre statements number of benzodiazepine tablets and wrote a suicide note to her about conspiracy theories, she was said to be affected by a mental illness husband. Two days prior, another suicide note had been mailed to her in the days leading up to the murders (2008, pp. 341–342). In trying to psychologist whom she was seeing in relation to her marital difficulties. establish an offender's state of mind at the time of a crime, accounts Mr David Fitchett returned home at about 6:30 pm to find her drugged obtained as soon after the offense as possible carry more weight than and the children dead in bed. He did not realize that they had died some those obtained prior to it. Mullen explained that ‘perhaps the most hours earlier and attempted resuscitation. At around this time, Fitchett important thing . . . is what the person said in the hours and sometimes went into the kitchen and inflicted some wounds on her arms, neck days after the offence [and] what their statements were to others’ and groin. She then went to bed and stayed there until ambulance offi- (2008, p. 340). The accounts given by mental health professionals with- cers arrived. She was later admitted to the Thomas Embling Hospital as in hours of and a few days following the offense indicated that Fitchett an involuntary patient. ‘had a disorder of mind . . . and that was a depressive illness’ (2008, Fitchett detailed her actions to emergency, ambulance and hospital pp. 341–342). staff. She explained that she had killed her children to protect and Mental impairment at the time of a crime is thus usually determined spare them from what would be a harsh life with their father (R v by piecing together elements of the events that occurred before and Fitchett transcript, 2008, pp. 69–72). In her mind, she ‘had moved after the offense. However, in this case, Mullen gave evidence that them to a safer place’ where ‘all [was] peaceful [and] no one could there was ‘unusual insight’ into Fitchett's state of mind because she ever hurt them’ (2008, pp. 68–69). At her first trial, Fitchett claimed wrote a suicide note on the day of the offense, hours after the crimes that she suffered from mental impairment at the time of killing her chil- had been committed (2008, p. 340). This note gave a closer insight dren. Her defense was rejected, and she was found guilty on 22 May into her possible state of mind while she was committing the crimes. 2008. Fitchett was sentenced to an 18–24 year custodial order at a psy- If suicide attempts and depression can be taken into account as evidence chiatric hospital. This decision was based on the judgment that she was of mental impairment at the time of an offense, then this ‘unusual mentally ill during sentencing because the law recognizes an offender's insight’ was a strong piece of evidence for the defense. mental health state at the time of sentencing regardless of culpability. Once mental illness at the time of an offense is determined, and in Claiming that a miscarriage of justice had occurred because the trial this case it was a non-disputed depressive illness, the next step is to judge had failed to explain the outcome of a ‘not guilty because of men- determine how (or whether) it affected the accused. According to tal impairment’ verdict, she successfully appealed her conviction and a Mullen, Fitchett's rationalization about the murders was evidence of a re-trial began on 12 April 2010. Mental impairment was again raised mental illness that impaired her reasoning at the time. The fact that as an issue at the second trial. Fitchett was found guilty for a second she believed that her actions were ‘an act of love . . . a necessary act’ time, on 18 May 2010. On 1 September 2010, she was sentenced to because her children could not have a decent life without her, and 18–27 years in prison. This time she was sentenced to prison because, that they were better off dead than being left in the care of family, according to psychiatric opinion, her mental condition had improved friends or their father, suggested that the depressive illness had ‘per- and was manageable in a prison environment. verted her understanding of the world to such an extent that she actu- At the first trial, the prosecution argued that Fitchett set out to kill ally believed . . . what she was doing was right’ (2008, pp. 341–342). her sons in order to punish her husband for their unsatisfactory mar- Mullen's further evidence was that, because Fitchett was undisputedly riage. The Crown called expert psychiatrist Dr Yvonne Skinner to negate a loving and caring mother, the only explanation for her ‘dreadful and the defense's claims of mental impairment. It put forward that Fitchett's absurd conclusion’ was the depressive disorder that affected her reason- actions were motivated by spousal revenge and that she had carried ing, which was possibly aggravated by the sudden withdrawal of the out the murders ‘in cold blood, consciously [and] voluntarily’ (2008, antidepressants and thyroid hormones she was taking on and off, thus pp. 59–60). At the second trial, the prosecution argued that the murders adding to the ‘disorganization of her thought’ (2008, pp. 341–342). were a consequence of Fitchett's suicidal tendencies, although she was Mullen testified that Fitchett clearly knew the nature and quality of not mentally impaired to the extent that she did not know her conduct her conduct because she carefully prepared for the homicide and was wrong. During both trials, the defense conceded that the first limb – suicide, and had said goodbye to loved ones. So the first leg of the that ‘he or she did not know the nature and quality of the conduct’ – did defense, as set out in section 20 of the CMIA, did not apply in this case. not apply in this case. The argument put by the defense was that, at the The question revolved around her reasoning or appreciation of right time of the alleged crime, Fitchett ‘could not reason with a moderate and wrong. Based on psychiatric evidence, the defense argued that degree of sense and composure about whether the conduct, as per- Fitchett was mentally impaired at the time of the crimes such that she ceived by reasonable people, was wrong’ (CMIA, s20[1] b). The ‘guilty’ did not know what she was doing was wrong and therefore should verdict following both trials suggests that, although Fitchett was men- not be held criminally responsible (2008, p. 348). Whether she knew tally ill (clinically depressed) at the time of the crime, the degree of her actions were legally or morally wrong was not the issue; rather, it mental illness did not reach the threshold to satisfy the defense of men- was whether she was able to reason, as reasonable, ‘normal’ people tal impairment to the extent that it impaired her knowledge that her would, that her actions were wrong. The defense argued, during both conduct was wrong. trials, that she was not able to reason in this way. There were some differences between the two trials. At the first trial, 4.1.1. Proof of mental impairment during the Fitchett trial the Crown contended that Fitchett's suicide attempts were not genuine. When it comes to the issue of the impact of mental illness upon At the second trial, the prosecution no longer argued ‘spousal revenge’ criminal responsibility, the courts require expert opinion from mental as the motive; the only possible motive put forward by the Crown was health professionals about an offender's state of mind at the time of that Fitchett was suicidal and wanted to take her children ‘into death’ the crime. Expert witness for the defense, forensic psychiatrist Professor with her (R v Fitchett [2010] VSC 393, p. 14), though not mentally Paul Mullen, gave evidence that insight into the mental health state of impaired at the time of the crimes. Furthermore, the Crown sought Please cite this article as: Wondemaghen, M., Depressed but not legally mentally impaired, International Journal of Law and Psychiatry (2013), http://dx.doi.org/10.1016/j.ijlp.2013.11.010 4 M. Wondemaghen / International Journal of Law and Psychiatry xxx (2013) xxx–xxx the imposition of a life sentence at the second trial, which was not a threw her over the edge. She died as a result of the injuries she received. submission made at the previous trial. Nonetheless, the principal issue Freeman then drove to the Federal Court in Melbourne. in question – mental impairment – was the same in both trials. The During Freeman's trial on the charge of murder, the prosecution prosecution held that Fitchett committed the murders while legally argued that he had killed his daughter consciously, voluntarily and sane, and well able to reason right from wrong, whereas the defense deliberately, with the intent to cause her death or serious injury, moti- contended that Fitchett was mentally impaired at the time of the vated by spousal revenge because his former wife had altered their killings. children's custody arrangements. Based on the expert evidence provid- The jury rejected her defense twice. It appears that the lack of defini- ed by Dr Skinner and Dr Douglas Bell, the Crown argued that, although tion as to what constitutes ‘mental impairment’ within the Victorian Freeman was suffering from depression, it was not such that it caused legislation, as well as the familiarity of people with depression or the him to be mentally impaired. By contrast, the defense argued that label ‘depression’, affects how members of the jury deal with violent Freeman was legally insane at the time of the offense, based on Profes- offenders claiming mental impairment as a result of this ‘familiar’ condi- sor Graham Burrow's evidence who argued that Freeman was suffering tion (see Discussion). Mullen explained, however, that a psychiatric from severe depression which caused him to ‘fall’ into a state of dissoci- diagnosis cannot determine whether Fitchett was able to think and rea- ation so that his acts were not conscious, voluntary, deliberate or inten- son about the nature of her actions at the time of the offense (R v tional; he was acting like an automaton. This case employed both limbs Fitchett transcript, 2008, p. 348). What this argument entails is that psy- of the mental impairment defense in contrast to the Fitchett case. That chiatric symptoms or the mental health state of an offender at the time is, Freeman did not know the nature and quality of his conduct [s20 of their offense are of greatest significance when trying to understand (1a)] or that it was wrong [s20 (1b)]. criminal responsibility, rather than the diagnostic label. It is the mental Initially, the jury in this case could not decide unanimously whether condition that impairs the offender's mental functioning at the time of a Freeman was guilty of murder or not guilty because of mental impair- crime that is more relevant. Similarly, psychiatrist Dr Danny Sullivan, ment. This was because the jury could not resolve the dispute between another expert witness for the defense in this case, explained that the expert witnesses (R v Freeman transcript, 2011, p. 1210). The most although the defense is frequently raised for ‘significant brain injuries significant dispute was over the degree of depression from which or intellectual disability or psychotic illnesses, the test is not specifically Freeman was suffering and the consequences of his illness on his defined that there must be a psychotic illness present’ (2008, p. 327). He actions. The defense psychiatrist gave evidence that Freeman's depres- argued that the test of mental impairment extends also to ‘disorders of sion was severe, while the Crown's expert witnesses testified that it thinking’. Sullivan asserted that, although Fitchett had no overt psychot- was moderate. Because the defense has to prove mental impairment ic symptoms, her behaviors and rationalizations about her crime ‘were on the balance of probabilities, if the jury cannot decide which expert grossly irrational’ (2008, p. 327). Believing that her children would be to believe, the defense would not be successful. Justice Paul Coghlan better off dead than in the care of their father was evidence of an irratio- explained: ‘If it's a question of not knowing who of the experts' evidence nal thought process that may not be psychotic but nevertheless indi- should be accepted or not . . . then the defence of mental impairment cates an ‘inability to reason at the time’ (2008, p. 327). Despite the will not have been made out because for that defence to operate, you evidence provided by both psychiatrists, the jury denied and rejected have to be satisfied on the balance of probabilities’ (2011, p. 1227). In Fitchett's claims of mental impairment twice, illustrating the difficulty other words, the jury could not decide whether Freeman was more like- in employing the defense successfully to mitigate culpability on the ly to be mentally impaired because they did not know which expert basis of depression. The following case is another illuminating example evidence to accept or reject, rendering the defense's argument unsuc- of this issue. cessful. Accordingly, on 28 March 2011, Freeman was found guilty on one count of murder. 4.2. The Freeman case 4.2.1. Proof of mental impairment during the Freeman trial The defense argued that Freeman lacked the required mens rea, The agreed facts taken from R v Freeman [2011] VSC 139 were as because of mental illness, thus committing the act unconsciously, invol- follows. On 29 January 2009, Arthur Freeman killed his daughter who untarily and unintentionally like an automaton; and that he was men- was that day to attend her first day at school. All three of his children tally impaired as set out in both limbs of section 20 of the CMIA. had been in his custody overnight staying with Freeman's parents. On Either of these two arguments could lead to an acquittal, unless there the day prior to the incident, Freeman and his former wife were at the is a mental illness that requires treatment and detention at a psychiatric Family Court resolving a dispute over custody of their children. The facility, as per section 26 (2) (a) of the CMIA. To prove these two argu- arrangements for custody were altered so that the previous arrange- ments, expert psychiatric evidence from Professor Burrows was sought ment, of each parent having an equal share of the custody, was changed by the defense. The offender's behavior before and after the crime was such that Freeman's access was reduced. The orders were made by analyzed to gain insight into his mental state at the time of the offense. consent. Freeman had been upset by his experience leading up to the Before interviewing Freeman thirteen months after the incident, custody hearing. He believed that he was unfairly treated by the court Burrows – who is an eminent psychiatrist and expert on dissociative psychologist, whose report formed part of the depositional material. disorders – first examined reports from four other psychiatrists and Following the custody agreements, Freeman arrived at his parents' considered the interviews he had conducted with Freeman's parents home in a distressed state. On the morning of the incident, while driving to form an opinion about Freeman's mental state at the time of the his children to school, Freeman engaged in a telephone conversation crime (R v Freeman transcript, 2011, p. 617). Burrows gave evidence with a friend in the United Kingdom (UK), in which he indicated that that Freeman had a major depressive disorder at the severe end of the he believed he had ‘lost’ his children. Not long after that conversation depression scale, intermittently for two years prior to the incident concluded, Freeman received two telephone calls from his former (2011, p. 624–626). He explained that people with major depressive wife. In the first, he said to her, ‘Say goodbye to your children’, and in disorders tend to dissociate more than those without, and that in the second, ‘You will never see your children again’. Freeman subse- Freeman's case he was at the severe end of the scales for both depres- quently drove to the Westgate Bridge, pulled into the extreme left- sion and dissociation such that ‘he didn't really know what was going hand emergency lane and turned on the hazard lights. After he stopped on’ (2011, p. 628). the car, he told his daughter to climb over into the front seat. He then The DSM-IV-TR defines dissociation as ‘a disruption of the usually reached into the car from the driver's side, pulled her from the car to integrated functions of consciousness, memory, identity or perception take her over to the parapet of the bridge, where he lifted her up and of the environment with intact reality testing’ (APA, 2000, p. 519). The Please cite this article as: Wondemaghen, M., Depressed but not legally mentally impaired, International Journal of Law and Psychiatry (2013), http://dx.doi.org/10.1016/j.ijlp.2013.11.010  M. Wondemaghen / International Journal of Law and Psychiatry xxx (2013) xxx–xxx 5 disruption can be sudden, gradual, transient or chronic. In this case, in the previous twenty four hours’ (2011, pp. 843–844). Freeman knew depression was used to argue mental impairment, and dissociation to that what he was doing was wrong because in that conversation he is argue automatism. In the legal context, automatism refers to the state ‘very clearly indicating a sense that he has been wrongfully treated, of an individual who commits a crime involuntarily. It can occur even badly treated, unfairly treated [and] to think in that way is to think in when consciousness and awareness are present, in a state of dissocia- moral terms about what has happened to him’ (2011, p. 844). This did tion, when there is a lack of control of the criminal conduct but a recol- not suggest that he was not aware of the nature or wrongfulness of lection of the events (McLeod, Byrne, & Aitken, 2004; McSherry, 1997, his act. Bell was thus suggesting that Freeman was suffering from mod- 2005b) as if they were a dream or a movie. It can also occur whether erate depression, had no psychotic symptoms and was therefore not an individual has or does not have a mental illness, known as insane mentally impaired. Likewise, Skinner testified that there was no and sane automatism, respectively. When ‘insane automatism’ is raised, evidence to suggest a lack of the required mens rea because the offense as it was in this case, it falls under the mental impairment defense ‘can be explained . . . on the basis of underlying psychological dynamics’ because it can lead to a finding of ‘not guilty because of mental (2011, p. 756); that is, the ongoing acrimonious custody disputes that impairment’. occurred on the day prior to the offense and the unfavorable court deci- Burrows argued that there is a direct correlation between hypnotiz- sions that Freeman regarded as unfair. Because ‘people in dissociation ability and dissociation; the more hypnotizable an individual is, the act in accordance to their will and are conscious of what they're doing’ more easily he or she will dissociate. Because Freeman scored the (2011, p. 803), Skinner gave evidence that Freeman was not suffering highest score for hypnotizability, the defense argued that he was in a from ‘a mental illness, automatism or other mental condition having dissociative state directly related to his severe depression at the time the effect that he did not know what he was doing or did not know of the crime (2011, pp. 630–631). According to Burrows, Freeman's the conduct was wrong’ (2011, p. 757). inability to remember the events further strengthened the evidence of To address the question of automatism, Skinner rejected the propo- his dissociation and lack of voluntary action. Thus, although Freeman sition that Freeman lacked the required voluntariness to commit the was capable of purposive actions such as making and receiving tele- crime and that the crime was an unwilled act because he ‘was able to phone calls or driving, he was ‘severely psychiatrically ill and was discuss plans with his parents, organize his children to prepare for the impaired in his judgments of what he was going to do’, such that he journey [to school] . . . spoke to the children on the journey [and] was did not know what he was doing when he threw his daughter off the able to make and receive telephone calls’ (2011, p. 706). In contrast to bridge (2011, p. 649). The defense also argued that the memory loss the evidence by Burrows, Skinner argued that the memory loss Freeman Freeman experienced surrounding the killing, otherwise known as am- experienced was due to ‘extreme emotional arousal’ (2011, p. 752) as a nesia, was an indication of unwilled and unintentional conduct at the result of the shock or extreme stress that occurs following a killing, rath- time of the offense. Dissociative amnesia is classified by the DSM-IV- er than indicating unconscious or involuntary behavior. This argument TR as an inability to recall important personal information due to was strengthened by the fact that Freeman ‘told his daughter to move trauma or stress, which is too extensive to be explained by mere forget- into the front seat of the car . . . carried her to the bridge rail and fulness (APA, 2000, p. 520). According to the defense, Freeman's disso- threw her’ (2011, p. 755). Similarly, Bell affirmed that ‘the presence of ciative amnesia proved that the killing was not a willed, conscious or a dissociative amnesia does not of itself establish that at the time of voluntary act; and that Freeman did not understand the nature of the crime the individual was not conscious of his actions, or capable of what he had done or that it was wrong, in line with section 20 of the engaging in voluntary or willed behaviour’ (2011, p. 704). He added CMIA. that complex behaviors such as driving and picking up a telephone The prosecution rejected the claims of mental impairment and of ‘are not compatible with being dissociated and in a state of committing insane automatism. The Crown, based on the evidence put forward by an act that is not voluntary or conscious’ (2011, p. 848). Indeed, every- Bell and Skinner, argued that Freeman was guilty of murder. As argued thing Freeman did on the day of the incident ‘is a complex and by Mullen in the Fitchett case, psychiatric opinion as evidence is protracted sequence of goal directed behaviours’ that are incompatible regarded as more reliable and valuable the sooner interviews with the with involuntary behavior (2011, p. 700). Supporting the Crown's offender are conducted after the committal of the crime. The prosecu- case, Bell rejected the defense's argument that Freeman was able to tion argued that because four other psychiatrists saw Freeman thirteen drive a car while dissociated and acting unconsciously, simply because months before Burrows did, and within days or months of the event, driving is a habitual and over-learned behavior that can be accom- their opinion that he was not mentally impaired at the time of the inci- plished without conscious awareness. However, to ‘direct his child to dent was more reliable simply because of the proximity of their inter- the wall of the bridge, to lift his child up off the road and then to views to the incident (2011, pp. 666–667). It was these psychiatrists' throw his child over a ledge of a wall which required him to actually reports that Burrows used to form his opinion of mental impairment lift his child’ is not behavior that is over-learned and habitual, but is a at the time of the crime. one-off that is only possible when there is awareness of the surrounding The Crown psychiatrists gave evidence that Freeman's depression environment (2011, p. 851). There is therefore no basis, he argued, ‘on could not amount to mental impairment. Further strengthening the which to reasonably conclude that he could not and thus did not form argument that psychotic illnesses and symptoms are more readily any intention’ to kill the deceased (2011, p. 857). accepted as leading to mental impairment than are depressive illnesses, This case illustrates the issues that arise from conflicting psychiatric Bell argued that in terms of knowing the wrongfulness of an act, for opinions about whether mental disorders such as depression can reach people with depression, unless they are suffering from the severe the threshold for mental impairment, which have a significant influence form with psychotic features, the capacity for moral reasoning and the on whether a jury accepts or rejects an offender's claim of mental understanding of right and wrong are intact and ‘preserved’ (2011, impairment. Ultimately, in the Freeman case, the jury accepted the p. 828). Indeed, Bell argued, as people get more depressed (and do not evidence of the two psychiatrists for the Crown refuting legal insanity suffer from psychotic symptoms), their ‘moral sensibility becomes in the context of depression. Non-psychotic illnesses like depression heightened . . . rather than losing an ability to think about the difference pose difficulties for offenders who employ the defense because these between right and wrong through that self-blaming mindset that the illnesses are not readily accepted as satisfying the criteria set out in person acquires; there is a sharpened sense of wrongfulness and right- section 20 of the CMIA. In addition, the Freeman case demonstrates ness and their own place in that’ (2011, pp. 828–829). Thus, the manner the difficulties in employing automatism as a result of dissociation, in which Freeman conducted a conversation with his friend in the UK on due to conflicting psychiatric opinions about dissociation and purposive the morning of the incident ‘clearly demonstrates an awareness of his behaviors. As is evident from the various psychiatric views presented at personal circumstances at the time, and memory of what has happened Freeman's trial, it is difficult to prove with certainty whether a traumatic Please cite this article as: Wondemaghen, M., Depressed but not legally mentally impaired, International Journal of Law and Psychiatry (2013), http://dx.doi.org/10.1016/j.ijlp.2013.11.010 6 M. Wondemaghen / International Journal of Law and Psychiatry xxx (2013) xxx–xxx event caused dissociation or whether dissociation caused the lack of psychosocially rather than biologically induced (Angermeyer & voluntary and conscious behavior. This was particularly difficult in the Matschinger, 2003; Phelan, Link, Stueve, & Pescosolido, 2000). As Freeman case because a diagnosis of dissociation is largely based on such, affected individuals are perceived to be well able to discern right the subjective account of the individual concerned, and Freeman was from wrong, and to control their conduct. Jorm, Christensen, and unable to give an account of his mental state at the time of the crime Griffiths (2005) and Jorm, Kitchener, Kanowski, and Kelly (2007) (2011, pp. 638–639, 745–746). It could therefore only be speculated argue that the Australian public does not believe that medical treatment that he was dissociating and acting unconsciously at the time of the is necessary for conditions like depression, clearly illustrating how the offense, rather than making these claims with any certainty. Freeman seriousness of depressive illnesses is often underestimated. Depression also claimed he suffered from dissociative amnesia, which is a is seen as a part of life, an aspect of ‘the human condition’ resulting from claim that is ‘both very easy to make and very difficult to disprove’ adverse life situations (Hogg, 2011, p. 654). These popular perceptions (Victorian Law Reform Commission [VLRC], 2004, p. 246). The public, and ‘trivializations’ of this illness may affect the way members of a judges and juries are likely to be skeptical of a claim of dissociation lead- jury reach their verdict, such that depressed offenders like Freeman ing to automatism, particularly if the offender had made threats prior to and Fitchett are considered able to control their conduct and are there- the offense (VLRC, 2004, p. 246). Automatism was difficult to accept in fore culpable. Contrarily, with ‘alien’ illnesses such as those of the psy- this case because, prior to killing his daughter, Freeman had told his chotic type (Phelan et al., 2000) the concept of criminal responsibility former wife to ‘say goodbye’ to her children as she would ‘never see is applied differently. Psychotic disorders, characterized by delusions [them] again’. Furthermore, amnesia following a violent crime might and hallucinations, are understood to be biologically caused illnesses not be a result of dissociation but rather a coping mechanism in (Angermeyer & Matschinger, 2003; Phelan et al., 2000) that impair per- response to the traumatic experience of killing. ceptions of reality (Douglas, Guy, & Hart, 2009; Link, Monahan, Stueve, & Cullen, 1999) and, therefore, render sufferers unable to control their conduct or appreciate right and wrong. It can be argued that these 5. Discussion beliefs significantly contribute to the ready acceptance amongst courts and jurors when psychotic offenders claim mental impairment. Chief What constitutes ‘mental impairment’? Although the legislation in Crown Prosecutor Gavin Silbert (21 December 2010) explains why Victoria does not state or specify precisely what it means to be ‘mentally depression may not pass the legal test of mental impairment in practice: impaired’, the findings in this research illustrate that, in practice, non- psychotic mental illnesses do not form the basis for a successful defense I'm not sure depression does qualify really because . . . you've got of mental impairment thereby mitigating criminal responsibility. To the ordinary people sitting on a jury who've either had depression best knowledge of the author, there is no data available on non- or they've got children who've got depression or they've got psychotic mental illnesses amounting to the legal test of mental impair- relatives. . . and they've got a familiarity with depression. I mean psy- ment. Furthermore, the latest report by the VLRC (2004, p. 237) points chosis and schizophrenia are a little bit more difficult to come to out that the defense is only successful for psychotic illnesses. In seven terms with unless they've had some involvement with it. You need of the nine cases in which mental impairment succeeded as a defense a major psychosis . . . because as far as the population goes . . . three in a study conducted by the VLRC (2003, p. 177), the offenders were in four females and two in four males will be depressed at some suffering from a psychotic illness characterized by hallucinations or point in their lives. delusions. Since the introduction of the CMIA, all of the cases in which mental impairment has succeeded as a defense have concerned In other words, a large proportion of the Australian population suf- offenders who had been psychotic at the time of the homicide (VLRC, fers from depression or knows of someone who has, and yet they do 2003, p. 181). not commit serious violent offenses. It is therefore unlikely that the The methodological approach taken in this study provides contextu- courts and jury members will accept that a depressed violent offender al and interpretative insight into how and why non-psychotic illnesses can be mentally impaired so as to not know right from wrong at the like depression do not seem to be readily accepted as fitting the legal time of their crime. Lawyer1 (21 December 2010), on the other hand, test of mental impairment. With legislation that offers no definition of argues that: ‘mental impairment’, it is difficult to decide whether depression can There are degrees of depression that I suppose when people are very impair one's appreciation of the nature and quality or wrongness of an depressed, that too can render them incapable of knowing the act and thus mitigate culpability, particularly when there are conflicting nature and quality of their conduct or not understanding that the psychiatric opinions. Conflicting opinions from mental health experts conduct was wrong. influence the way members of a jury understand criminal responsibility, as seen in both the Freeman and Fitchett cases. Consensus amongst psy- McSherry (2005b) argues that various judges have indicated that chiatrists from both legal parties on the issue of mental impairment conditions falling within the defense of mental impairment include results in ‘consent mental impairment’, where both the prosecution psychotic disorders, cerebral arteriosclerosis, epilepsy and hypergly- and the defense agree on the matter such that a trial is not needed2. cemia. This makes the defense narrow, which was confirmed by the However, when this is not the case, it appears that jury members do interviews with the participants selected for this research. When not readily accept that illnesses such as depression can render individ- the research participants were asked about which psychiatric ill- uals legally insane, and tend to ‘agree’ with the Crown's arguments. nesses were successfully raised for the defense in practice, the fol- More importantly, the general public's familiarity with the more lowing were the responses: common mental illnesses like depression may influence the courts' and juries' willingness to exculpate criminal responsibility in the con- The usual ones would be paranoia, schizophrenia, dissociation. text of offenders who suffer from this type of illness. This may be partic- [Lawyer2 (21 December 2010)] ularly problematic when considering a criminal act as violent as killing one's own children. Depression is now understood and perceived to be a type of illness that can be experienced by ‘anyone’ and is There are particular psychiatric conditions which more readily lead 2 to the conclusion the person is mentally impaired and I suppose The Crimes (Homicide) Act 2005 (Act. No.77), 2005 (Act. No. 77) states that if both the the most obvious one is psychosis. Where the evidence is strong in prosecution and the defense agree that the defense of mental impairment is established, the trial judge, if satisfied, may direct that a verdict of ‘not guilty because of mental impair- relation to psychosis, that will readily lead to a defense of mental ment’ be recorded [s.10 (2)(a)] without empaneling a jury. impairment. I think also the condition called paranoid schizophrenia Please cite this article as: Wondemaghen, M., Depressed but not legally mentally impaired, International Journal of Law and Psychiatry (2013), http://dx.doi.org/10.1016/j.ijlp.2013.11.010  M. Wondemaghen / International Journal of Law and Psychiatry xxx (2013) xxx–xxx 7 leads to mental impairment. One of the difficult barriers is that of suffer from disorders that purportedly fall short of mental impairment depression. Depression – be it either mild or severe – is not readily under the current defense: those who suffer from psychiatric illnesses perceived as amounting to a mental illness sufficient to lead to a suc- other than the psychotic type, particularly depression. This is significant cessful defense of mental impairment, although there is no good rea- because the defense is almost exclusively raised for homicide cases (due son it shouldn't be. But I think . . . the psychotic person who may be to the possibility of indefinite detention), and the incidence of depres- quite delusional is an obvious candidate for a mental impairment sion amongst offenders tends to be higher than that of other disorders defense just as the paranoid schizophrenic is also. at the time of committing a homicide (Mullen, 1997). Thus, limiting [Defense Counsel Patrick Tehan (21 December 2010)] the defense to psychotic illnesses makes it too narrow and restrictive. Carroll and Forrester (cited in McSherry, 2005a,b) argue that the defense is narrow because its broadening would lead to the inappropri- A clearly diagnosed psychosis such as schizophrenia would clearly ate pathologizing of ‘fleeting mental states’ which are distinct from qualify. I mean, we get consent mental impairment in that situation. mental illnesses that extend over a considerable period of time. Unsat- If you've got the defense psychiatrist saying, ‘psychotic, paranoid isfactorily, this test ‘reflects a poor understanding of mental illnesses’ schizophrenia’ and we have them looked at by a psychiatrist on that is inconsistent with medical knowledge (VLRC, 2003, p. 173). As behalf of the prosecution, and they say the same thing, then . . . it McSherry (2005b, p. 48) asserts, ‘it may be that it is better to focus goes through as consent mental impairment, there's no dispute more on the effect of particular mental conditions on the person's ability about it. to reason, rather than on which mental conditions themselves should [Chief Crown Prosecutor Gavin Silbert (21 December 2010)] form the basis for the defense’. But currently, diagnostic labels do matter because it can be argued that since psychotic symptoms are more per- Thus, although the defense is unclear as to the specific meaning of suasive to juries, Fitchett's rationalizations that her children would be the term ‘mental impairment’, in practice it is successful in the case of better off dead rather than in the care of their father or family members, psychiatric disorders that impair perceptions of reality and therefore can be viewed or interpreted as psychotic-like or delusional (see knowledge of right and wrong; psychotic-type mental illnesses. Similar- Mullen's and Sullivan's arguments in Section 4.1.1 of this article). It ly, when the legal representatives were questioned about their under- appears that Fitchett's diagnostic label of ‘depression’ significantly influ- standing of mental illness and the mentally ill, the responses generally enced the way members of the jury understood her criminal responsi- referred to psychotic-type mental illnesses, as evident in the following: bility, over the course of two different trials, despite the psychotic-like manifestations of her reasoning. Someone who is just outside the parameters of being normal – now Employing the mental impairment defense should accommodate presumably the parameters of being normal are pretty wide – but I people affected by a variety of mental conditions. In theory, the defense guess there are parameters beyond which you go on either side is not confined to offenders suffering from the psychoses. Currently, where your behavior just becomes completely bizarre and socially however, it seems that only these illnesses are favored. Psychiatric dis- unacceptable and so far outside the norm as to be classified as orders that are deemed to fall under the current defense are very few mentally impaired. in number because of the medico-legal issue faced in addressing the [Chief Crown Prosecutor Gavin Silbert (21 December 2010)] question of how mental disorders influence criminal behavior. The legal definition in relation to the ability to reason about right and wrong is not relevant to the diagnosis of mental illness or psychiatric As a lawyer, I think mental illness is what's set out in the legislation; behavior in the medical field. Indeed, as Lawyer1 (21 December 2010) as a private person, I think it might go beyond that. Most commonly I elaborates: think are your cases of schizophrenia, or psychosis, hallucinations. The medical science which the courts and the legislation rely on may [Lawyer1 (21 December 2010)] not be up-to-date with the various conditions that can cause a per- son to act in the way they [do]. So, sometimes you will have doctors saying, ‘Look, the person is not mentally impaired because we can't The one thing that comes through with a lot of the cases that I've really make that diagnosis’, but you feel that there must have been done is . . . the grossly mentally impaired person . . . the sort of classic something that caused them to behave in such an irrational, unchar- case of psychosis . . . sometimes accompanied by delusion, some- acteristic way, and it may just be that people are looking at it too times even by hallucinations. narrowly. [Defense Counsel Patrick Tehan (21 December 2010)] Well, bizarre behavior, delusions. Depressive disorders . . . of course 6. Conclusion at their most extreme generally lead to suicide, nothing trivial about such depression. Overall, it may be argued that mentally impaired offenders tried in [Lawyer2 (21 December 2010)] Victoria are at a disadvantage because in cases in which the courts con- sider non-psychotic illnesses as falling short of mental impairment These findings illustrate that, in the legal context, mental illness in its there is no option to raise the partial defense of diminished responsibil- psychotic form is considered severe enough to amount to mental ity to achieve a determinate and shorter sentence for manslaughter impairment and thereby mitigate culpability in relation to violent rather than murder. Having this partial defense can be preferable crime. Through this defense, psychotic offenders can obtain the because a verdict of ‘guilty’ for murder results in either considerations required treatment when found ‘not guilty because of mental impair- of an offender's mental health at sentencing, with the possibility of ment’, although the defense can have disadvantages because it can indefinite detention at a psychiatric hospital, or the offender facing a lead to indefinite detention. maximum life-term in prison. Although not representative, this article provides detailed and con- One of the arguments for retaining the defense as it is in Victoria is textual insight into the operation of the mental impairment defense in that supervision orders are made only for those with severe (psychotic) Victoria, and its findings are applicable to the international context. mental illnesses, without having to make these orders for those who The fact that the CMIA is still essentially not very different from the suffer from other psychiatric illnesses, thereby causing strain on mental M'Naghten test raises some concerns for mentally ill offenders who health services (VLRC, 2003, p. 184). Due to the limited number of beds Please cite this article as: Wondemaghen, M., Depressed but not legally mentally impaired, International Journal of Law and Psychiatry (2013), http://dx.doi.org/10.1016/j.ijlp.2013.11.010 8 M. Wondemaghen / International Journal of Law and Psychiatry xxx (2013) xxx–xxx for psychiatric patients in Victoria (Victorian Ombudsman, 2012), Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, Act No. 65/1997. Douglas, K. S., Guy, L. S., & Hart, S. D. (2009). Psychosis as a risk factor for violence to this approach reduces unnecessary pressure on limited mental health others: A meta-analysis. Psychological Bulletin, 135(5), 679–706. services. Were the defense to be broadened, patients with less serious Hogg, C. (2011). ‘Your good days and your bad days’ An exploration and consideration of illnesses would be admitted to mental health facilities that are already how lay people conceptualize depression. Journal of Psychiatric and Mental Health Nursing, 18(10), 851–861. under significant strain (VLRC, 2003, p. 184). However, the lack of psy- Jorm, A. F., Christensen, H., & Griffiths, K. M. (2005). Belief in the harmfulness of antide- chiatric beds is not a sound reason to retain these laws when pressants: results from a national survey of the Australian public. Journal of Affective considering better policies for mentally ill offenders and the treatments Disorders, 88, 47–53. Jorm, A. F., Kitchener, B.A., Kanowski, L. G., & Kelly, C. M. (2007). Mental health first aid they may require, regardless of the severity (mild to severe) and type training for members of the public. International Journal of Clinical and Health (psychotic and non-psychotic) of illness or their moral culpability. Psychology, 7(1), 141–151. A central policy issue related to these questions concerns the differ- Link, B. G., Monahan, J., Stueve, A., & Cullen, F. T. (1999). Real in their consequences: A sociological approach to understanding the association between psychotic symptoms ence between the medical and legal conceptualizations of psychiatric and violence. American Sociological Review, 64(2), 316–332. disorders. The medical approach emphasizes diagnosis and treatment, McLeod, H. J., Byrne, M. K., & Aitken, R. (2004). Automatism and dissociation: Distur- while the legal is more concerned with whether or not offenders are bances of consciousness and volition from a psychological perspective. International criminally responsible with the aim of maintaining social order. The Journal of Law and Psychiatry, 27(5), 471–487. McSherry, B. (1997). The reformulated defence of insanity in the Australian crimi- Victorian legislation defines mental impairment by assessing whether nal code act 1995 (Cth). International Journal of Law and Psychiatry, 20(2), a person lacked the ability to know or reason about their conduct at 183–197. the time of their offense. By contrast, mental health professionals look McSherry, B. (2005a). Afterword: Options for the reform of provocation, automatism and mental impairment. Psychiatry, Psychology and Law, 12(1), 44–49. for ‘physiological causation’, and whether an individual could under- McSherry, B. (2005b). Men behaving badly: Current issues in provocation, automatism, stand or reason about their conduct is irrelevant to the diagnosis of mental impairment and criminal responsibility. Psychiatry, Psychology and Law, mental illnesses (VLRC, 2003, p. 174). These discrepancies pose serious 12(1), 15–22. McSherry, B., & Naylor, B. (2004). Australian criminal laws: Critical perspectives. : Oxford implications in terms of appropriate treatment for those not considered University Press. to be suffering from ‘serious’ mental illnesses in the context of violence Mullen, P. E. (1997). Assessing risk of interpersonal violence in the mentally ill. Advances and culpability, and thus fall short of the criteria that amount to mental in Psychiatric Treatment, 3, 166–173. Phelan, J. C., Link, B. G., Stueve, A., & Pescosolido, B.A. (2000). 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Defences to homicide: Final report. (Victoria: Thomson Reuters. Australia. http://www.lawreform.vic.gov.au/sites/default/files/FinalReport.pdf) Commonwealth Criminal Code Act (1995). Victorian Ombudsman (2012). Implementing human rights in closed environments: Mental Crimes (Homicide) Act 2005 (Act. No.77). health in prisons — monitoring and oversight. (Melbourne, Victoria). Please cite this article as: Wondemaghen, M., Depressed but not legally mentally impaired, International Journal of Law and Psychiatry (2013), http://dx.doi.org/10.1016/j.ijlp.2013.11.010