The Insanity Defence: Forensic Psychiatry in High-Profile Trials
In this article
Key Takeaways
- Complete vs incomplete exemption
- Psychosis and break with reality
- Insuperable fear
- Psychiatric internment
Criminal liability requires the capacity to understand the unlawfulness of the act and to act according to that understanding. Art. 20.1 CP exempts anyone who, because of a mental anomaly or alteration, cannot understand the unlawfulness or act accordingly; the incomplete exemption drastically reduces the sentence. Psychosis (a psychotic break, delusions) can ground the exemption, whereas psychopathy is usually treated as fully imputable. Art. 20.6 CP adds the exemption of insuperable fear. A complete exemption for insanity entails acquittal, but a security measure (internment or outpatient treatment) may be imposed if there is a risk of further offences (Arts. 95 and 101 CP), never longer than the sentence that would have corresponded.
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In criminal law, guilt requires not only having committed the act (objective imputation) but having done so with the capacity to understand its unlawfulness and to act according to that understanding (subjective imputation). When the accused's mental health is compromised, the defence strategy shifts radically: the goal may not be to deny the fact, but to demonstrate that the client is not criminally responsible. This is the terrain of exemptions and mitigating factors due to mental anomaly or alteration (art. 20.1 CP).
The Great Difference: Psychopathy vs. Psychosis
One of the most common mistakes is confusing the psychopath with the psychotic. For Spanish jurisprudence, the psychopath (antisocial personality disorder) perfectly understands what they are doing; they simply do not care emotionally. Therefore, they are fully imputable; psychopathy does not mitigate in itself, although their conduct may fit aggravating circumstances in Art. 22 CP such as cruelty or treachery. In contrast, a psychotic break (paranoid schizophrenia, delusions) implies a break with reality. If the accused acted under the imperative of a hallucinatory "voice", they lack volitional freedom. Here lies the expert battle: demonstrating that there was no malice, but illness.
Temporary Mental Disorder and Addictions
A chronic illness is not always required. We defend cases of "outburst or obfuscation", temporary mental disorder, and full intoxication or withdrawal syndrome, which have their own exemption (Art. 20.2 CP) unless the intoxication was sought in order to offend. The key for the exemption (acquittal) or incomplete exemption (drastic reduction of sentence) to apply is to prove the intensity of the impairment at the exact moment of the events. This requires detailed technical retrospective forensic psychopathology reports.
The Exemption of Insuperable Fear
Article 20.6 of the Criminal Code exempts anyone who acts driven by an "insuperable fear". It is a common defence in cases of domestic violence or in extreme situations where the accused reacts defensively to a real or imagined threat perceived as real. Unlike self-defence, the act is not justified here, but the author is "excused" because, given their situation of psychological terror, other conduct could not be demanded of them ("non-demandability of other conduct").
The Jury Court
In trials with a Popular Jury, psychiatric evidence is critical. The lay jury tends to judge the facts. The defence lawyer's job is to "humanize" the accused and translate complex medical terminology into emotional and understandable language that allows the jury to empathize with the defendant's altered mental state.
Acquittal is Not Freedom: Security Measures
It is vital to be honest with the client and their family. Achieving a complete exemption due to mental insanity entails criminal acquittal, but almost invariably implies the imposition of a security measure of internment in a psychiatric penitentiary center. The duration of this measure cannot exceed that of the prison sentence that would have corresponded, but its execution is different. Our defence extends to the execution phase, fighting for outpatient treatments or internments in external civil centers, much more suitable for therapeutic recovery than psychiatric prison.
Official text: article 20 of the Spanish Criminal Code (BOE)
Frequently asked questions
Is a psychopath not criminally responsible?
Under Spanish case law, a psychopath (antisocial personality disorder) fully understands what they are doing, even if they feel no emotional concern; they are therefore fully criminally responsible; psychopathy does not mitigate in itself, although their conduct may fit aggravating circumstances in Art. 22 CP such as cruelty or treachery. A psychotic break is different: it involves a break with reality and can ground the exemption.
What is the difference between a complete and an incomplete exemption?
The complete exemption under Art. 20.1 CP leads to criminal acquittal when the mental anomaly or alteration prevents the person from understanding the unlawfulness of the act or acting according to that understanding. The incomplete exemption applies when the impairment is partial and does not fully remove that capacity, producing a drastic reduction of the sentence.
Can intoxication or a withdrawal syndrome exempt someone from criminal responsibility?
A chronic illness is not required. Full intoxication and withdrawal syndrome have their own exemption (Art. 20.2 CP), unless the intoxication was sought in order to offend or the offence was or should have been foreseen; where the impairment is partial, the incomplete exemption may apply. The key is proving the intensity of the impairment at the exact moment of the events, which requires a retrospective forensic report.
What is the exemption of insuperable fear?
Art. 20.6 CP exempts anyone who acts driven by insuperable fear. Unlike self-defence, it does not justify the act; it excuses the perpetrator because, given their situation of terror, no other conduct could be demanded of them. It is common in extreme situations and contexts of violence.
Does being declared not criminally responsible mean going free?
Not necessarily. A complete exemption for insanity entails criminal acquittal, but a security measure may be imposed (internment in a psychiatric centre or outpatient treatment) if there is a risk of further offences (Arts. 95 and 101 CP). Its duration cannot exceed that of the prison sentence that would have corresponded, and the defence can fight for outpatient treatment or external centres.
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