What is it about criminal cases that attracts so much attention of the public? Is it their thou-shall-not nature that many people associate with law in general? Or is it our fear of crime and the desire for retribution? Then violent crime, which involves some of the biggest taboos and most terrifying acts, should be the most riveting. And it is, especially when the perpetrator seems to get away with it.
Take the case reported in today’s Globe. A man had sex with a woman without her consent. At trial, the judge acquitted him of sexual assault because the man was found to be asleep during the act. The scientific term is sexsomnia. He was sleeping and doing it at the same time. The woman was actually passed out too. It was some wild party. Without judging recreational choices of these two, did the man rape the woman?
Here is another one. A man beheads his seat neighbour on a bus. A judge found the killer not criminally responsible because he was mentally ill and didn’t know what he was doing. He heard voices that told him to dispatch the other guy. I even heard some law students quietly condemn our justice system for absolving the accused in this case. And I am not even talking about comments some people posted on major Canadian newspapers’ websites. Why do some consider the man in question a murderer?
Our most basic criminal law doctrine teaches that there is no criminal responsibility without fault. We can blame someone for a crime only if the accused knew what he was doing or should have known. For most serious crimes such as murder, we must prove that the accused knew what he was doing. For less serious crimes, it’s enough to show that an average Joe would have known had he been in the shoes of the accused. That’s why the sleepsex man and the beheader were off the hook.
Why do then some law students and members of the public condemn our criminal justice system? Let’s skip the ignorance explanation. Those who disagree with the verdict in the beheading case speak from the heart, out of deep conviction. Knowledge of the ethical theory of fault and criminal law principles derived from it and enshrined in the Charter will not likely affect their position. There are two explanations for their stance, really. One, they reject the philosophy requiring fault for punishment. Second, they don’t trust the modern science of the mind enough to risk releasing absolved killers and rapists into the community.
In the first case, it’s tough luck, sorry. I just don’t see Canada or similar countries calling accidental or unconscious homicide murder. In fact, I am not sure there is any country with a half-decent legal system that does that. And if what you did to cause the fatal accident was nothing illegal, it’s not manslaughter, it’s not even a crime, and will never be in Canada. You drive a car at a speed limit; a man sits on a tree above your line of sight; he jumps in front of your car; you roll over him; you are not a criminal.
The second case is harder. Everyone understands evidence about a tree above the line of sight. Not everybody understands evidence about psychiatric science. And even when everyone accepts that an ill, delusional man is not criminally responsible, some are still afraid. With a criminal, you kind of know for how long he is going away. Even if a murderer is released decades later, the stigma is always there as well as probably the police interest. With a blameless man who was simply ill, he is locked only as long as he is sick, in theory.
I guess what grumpy law students or outraged members of the public are unhappy about is placing the decision to release in the hands of doctors. Some people just don’t trust a psychiatric diagnosis as much as evidence about the line of sight. Psychiatry is certainly not mechanical engineering or math. How do we know, the thinking goes, that he is really not sick anymore? (Assuming the doubters overcame their fear that the accused tricked the psychiatrists in the first place.)
I am not a psychiatrist. I don’t know how to answer to these concerns. Neither can I dismiss them from my layman’s perspective. All I know is what our criminal law professor said once: don’t assume everyone goes for the insanity defence—if you are convicted of murder, you may have a chance to get out eventually; if you are acquitted on the grounds of insanity, you are probably going away for good.