Insanity and the Subjective Elements of the Prohibited Act

Abstract

The subject of this study is the issue of determining the subjective element of a prohibited act committed by an offender lacking criminal responsibility by reason of insanity, considered against the background of the dispute concerning the place of intent and negligence within the structure of an offence. The central point of inquiry is the question whether the subjective elements of the act co-constitute the unlawfulness of the conduct as an element of the sanctioned norm, or whether they constitute a prerequisite of criminal liability, becoming relevant only at the level of the sanctioning norm. The adopted solution determines whether the conduct of an offender lacking criminal responsibility by reason of insanity may be regarded as an unlawful act. The article advances the thesis that intent and negligence should not be detached from the structure of the sanctioned norm. The subjective element co-determines the content of the criminal-law prohibition or command and therefore participates in defining the unlawfulness of the act. An offender lacking criminal responsibility by reason of insanity may be conscious of facts corresponding to the elements of the statutory offence, or may direct his activity towards a particular result, even though his decision-making process remains pathologically distorted. The study adopts the assumption that insanity excludes guilt, without rendering the subjective elements incomplete. The conduct of an offender lacking criminal responsibility by reason of insanity may therefore be regarded as a prohibited act, although it will not constitute an offence owing to the absence of guilt. The involuntariness of the conduct of such an offender should be understood not as a circumstance resulting in the absence of intent or negligence, but as the absence of the capacity for meaningful and autonomous self-determination. It is therefore possible to establish his intellectual and volitional attitude towards the act, while at the same time excluding guilt on account of the defectiveness of the decision-making process itself.