Constructing criminal insanity: The roles of legislators, judges and experts in Norway, Sweden and the Netherlands
| Author | Linda Gröning,Susanna Radovic,Gerben Meynen,Unn K. Haukvik |
| Published date | 01 September 2020 |
| Date | 01 September 2020 |
| DOI | http://doi.org/10.1177/2032284420950485 |
| Subject Matter | Other Article |
Other Article
Constructing criminal
insanity: The roles of
legislators, judges and
experts in Norway,
Sweden and the
Netherlands
Linda Gro
¨ning
University of Bergen, Norway; Haukeland University Hospital, Norway
Unn K. Haukvik
Oslo University, Norway; Oslo University Hospital, Norway
Gerben Meynen
Utrecht University, the Netherlands; Vrije Universiteit Amsterdam, the Netherlands
Susanna Radovic
University of Gothenburg, Sweden
Abstract
This article provides a discussion about criminal insanity regulation in Norway, Sweden and the
Netherlands, with a focus on the roles of legislators, judges and experts in the concretisation of the
legal meaning of criminal insanity. The authors recognise that these three countries reflect different
ideal type rule constructions that are interesting to study comparatively. The article addresses the
following overall questions: To what extent and in what way do the different rule constructions
also involve different views on the roles of legislators, judges and experts? And in case of competing
models, which is the better solution? To investigate and eventually answer these questions, the
authors analyse the content and legislative considerations of the relevant rules, how these rules are
applied and understood by judges and experts, and how different understandings of insanity, of
legislators, judges and experts, depend on each other. The authors show how the different rule
constructions represent different considerations on the adequate roles of the legislator, judges and
experts. They argue that what is important is not what precise division of roles that is settled, but
Corresponding author:
Linda Gro
¨ning, Faculty of Law, University of Bergen, PO Box 7806, 5020 Bergen, Norway.
E-mail: linda.groning@uib.no
New Journal of European Criminal Law
2020, Vol. 11(3) 390–410
ªThe Author(s) 2020
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/2032284420950485
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that this interplay functions to secure clear and robust rules, and that each of the three countries
has room for improvement in this regard.
Keywords
Criminal insanity, criminal law, forensic psychiatry, comparative law, legislation
Introduction
How the law should regulate criminal insanity, and more broadly deal with mentally disordered
offenders, is a contested matter. Different countries have different rule constructions.
1
Countries
may also review and change their rules from time to time, for example, in the aftermath of a serious
and complicated insanity case. One recent example is the law reform in Norway in the aftermath of
the case that followed Anders Behring Breivik’s killing of 77 people in Oslo and on Utøya in
Norway on 22 July 2011.
2
A core reason for the continuous controversy around the insanity rules is that criminal insanity
is a ‘multidimensional phenomenon’ located at the intersection of law (including its philosophical
dimensions) and medicine.
3
The criminal insanity doctrine does not only involve (positive) legal
premises but is also closely tied to philosophical premises about human agency and responsibility,
as well as empirical premises about how mental disorders affect the individual. Criminal insanity
rules must thus both reflect philosophical accounts of why mental disorders are (or are not)
relevant to responsibility and draw from medical knowledge about these disorders.
4
At the same
time, the rules must as legal rules comply with demands of legal certainty, equal treatment and
premises related to the law’s function as a sociopolitical instrument more generally.
5
Bearing this complexity in mind, it is not surprising that one of the most contested matters
regarding the regulation of criminal insanity is the functional division of labour between judges
and juries on the one hand and medical/mental health experts on the other. The insanity rules have
been criticised for providing the experts with too much power in deciding the outcome of criminal
1. For a comparative overview of criminal insanity regulations, see RJ Simon and H Ahn-Redding, The Insanity Defense,
the World Over, Global Perspectives on Social Issues (Lexington books, Lanham 2008); Carl-Friedrich Stuckenberg,
‘Comparing Legal Approaches: Mental Disorders as Grounds for Excluding Criminal Responsibility’ (2016) 4 Bergen
Journal of Criminal Law and Criminal Justice 48–64
accessed 2 February 2020.
2. See L Gro¨ning and GF Rieber-Mohn, ‘NOU 2014:10 – Proposal for New Rules Regarding Criminal Insanity and Related
Issues, Norway Post 22 July’ (2015) 3 Bergen Journal of Criminal Law and Criminal Justice 109–31
no/index.php/BJCLCJ/article/view/830> accessed 17 February 2020; L Gro¨ning, ‘Hvordan skal vi avgjøre om alvorlig
sinnslidelse innebærer utilregnelighet? Refleksjoner om lovforslaget i Prop. 154 L (2016–2017)’ (2017) 5 Bergen
Journal of Criminal Law and Criminal Justice 77–85
accessed 17 February 2020.
3. See L Gro¨ning, KH Melle and UK Haukvik, ‘Criminal Insanity, Psychosis and Impaired Reality Testing in Norwegian
Law’ (2019) 7 Bergen Journal of Criminal Law and Criminal Justice 27–59
article/view/2879> accessed 17 February 2020.
4. For an account that integrates perspectives from philosophy, law and psychiatry, see Gerben Meynen, Legal Insanity.
Explorations in Psychiatry, Law, & Ethics (Springer, Switzerland 2016).
5. See further L Gro¨ning, ‘Tilregnelighet og utilregnelighet: Begreper og regler’ [2015] 102 Nordisk Tidsskrift for Kri-
minalvidenskab 112–48.
Gro
¨ning et al. 391
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