Elsevier

International Journal of Law and Psychiatry

Volume 27, Issue 5, September–October 2004, Pages 445-457
International Journal of Law and Psychiatry

Criminal responsibility, “fleeting” states of mental impairment, and the power of self-control

https://doi.org/10.1016/j.ijlp.2004.06.002Get rights and content

Introduction

Peter Cane has coined the term fleeting mental states to describe those states of mind that “may occur in such a short space of time that it may be very difficult to disentangle the mental and physical elements of the person's conduct.”1 This article examines how the criminal law currently takes into account fleeting states of mental impairment, such as dissociation in response to extraordinary stress and a partial loss of self-control due to provocation. It is argued that fleeting states of mental impairment, particularly those that occur in the context of the breakdown of a relationship, should not be sufficient to enable an accused to be acquitted or partially excused from criminal responsibility. Rather, a contextualized approach should be taken to fleeting mental states such that it is presumed that individuals “normally” take appropriate steps to maintain self-control when relationships break down.

Currently, the legal concept of criminal responsibility in relation to serious criminal offences, such as homicide, requires two elements to be proved by the prosecution. First, the accused must have acted voluntarily in the sense of being able to control his or her actions. If this is not proved beyond reasonable doubt, the accused is entitled to an acquittal. It is here that evidence of “automatism” may be raised by the defence to negate the element of voluntariness.

Secondly, the accused must have possessed a subjective fault element, such as intention or, in some jurisdictions, recklessness as to the consequences of his or her actions.2 If this is not proved, murder may be reduced to manslaughter.

As well as having to prove that the accused's act was voluntary and intentional (or reckless), the prosecution generally bears the burden of disproving any relevant defences. The defence of provocation in relation to murder accepts that the accused's conduct was voluntary and that the accused intended to kill the victim, but enables a partial loss of self-control to be taken into account in reducing murder to manslaughter.

The structure of serious criminal offences can therefore be envisaged as follows:

This article focuses on the way in which automatism arising from dissociation may be raised in negating the element of voluntary conduct and how loss of self-control has been taken into account in the partial defence of provocation that reduces murder to manslaughter.

Stanley Yeo has described R. v. Stone3 as a “landmark decision on automatism and criminal responsibility in Canada.”4 The facts of the case also serve as a useful way of showing the overlap between claims of an inability to control one's conduct due to dissociation and a partial loss of self-control through provocation. Through exploring this case, it will become apparent that fleeting states of mental impairment do not sit comfortably with normative notions of criminal responsibility.

Section snippets

The case of Bert Stone

On May 8, 1993, Bert Stone, 42, married Donna, 34, in Winfield, British Columbia after a brief acquaintance. This was Stone's third marriage. His two sons aged 16 and 14 from Stone's second marriage lived with their mother in Vancouver. In March 1994, Stone was planning a business trip to Vancouver and arranged to meet up with his sons while he was there. Donna did not get on with Stone's sons and, according to Stone, demanded to go with him and during the drive to Vancouver constantly berated

Legal arguments raised at Stone's trial for murder

At Bert Stone's trial for the murder of his wife, the defence raised evidence of dissociation in response to extraordinary external stress as the basis for sane automatism as well as a partial loss of self-control due to provocation. Both dissociation causing the inability to control conduct and the partial loss of self-control can be viewed as fleeting mental states. They share the characteristic of a mind “snapping” because of an overwhelming external event. However, these states, if not

Psychiatric evidence

Two psychiatrists gave evidence at Bert Stone's trial: Dr. Janke for the defence and Dr. Murphy for the prosecution.

Dr. Janke interviewed Stone on two occasions approximately 18 months after the killing. He testified that Stone's account was consistent with a dissociative episode caused by a series of “psychological blows.” In his opinion, Stone was in a dissociative state for at least the majority of the attack and did not suffer from any psychiatric or physical condition that could have been

Automatism and the inability to control conduct: the legal approach

Automatism is the term generally used to refer at law to involuntary conduct resulting from some form of impaired consciousness. While sometimes referred to as a separate “defence,” in jurisdictions other than Canada, the accused only need raise evidence that the act was involuntary and then the prosecution must rebut that evidence beyond reasonable doubt. In Canada, however, a majority of the Supreme Court in R. v. Stone has held that the legal burden is on the defence to prove involuntariness

Automatism caused by dissociation: The psychological approach

As stated above, the legal concept of automatism encompasses a range of causes from sleep disorders to neurological conditions. Dissociative states have proved particularly problematic in relation to the division between sane and insane automatism.

One of the intractable problems with the fleeting mental state of dissociation lies in the division between how the law defines behaviour conducted in such a state and how it is defined in other disciplines. In the law, automatism refers to the

The defence of provocation and a partial loss of self-control

Criminal defences are traditionally used to deny that the act was wrong (justification) or to deny responsibility (excuse). That is, defences “justifying” a crime focus on the accused's act whereas those “excusing” a person from criminal responsibility are generally viewed as concentrating on the accused's personal characteristics.38 This

Normative stipulations of mental states

Peter Cane has pointed out that there are two approaches to understanding mental states that may not necessarily be mutually exclusive.45 One approach is to treat them as real metaphysical entities that require an understanding of human nature. Another approach is “to treat mental states as elements of social practices of holding and being held responsible, and of allocating praise and blame.”46 This involves a contextualized interpretation of what

Conclusion

At present, the criminal law in relation to dissociation in response to extraordinary stress and a partial loss of self-control due to provocation is exceedingly complex. Instead of focusing on the causes of fleeting mental states, a better alternative may be to take a step back and to ask whether those who suffer such states should be held criminally responsible for their actions.

The psychological literature indicates that in cases of dissociation, conduct may not be completely unwilled, but

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