2. Insanity/Diminished CapacityA person acts without culpability when that person suffers, at the time of committing an offense, from a mental disease, a substantial impairment of consciousness, imbecility, or another mental aberration and is therefore unable to recognize the wrongfulness of his or her conduct or is unable to act according to his or her insight (£ 20 PC). If, for one of the reasons just named, the person’s ability to recognize the wrongfulness of his or her conduct or to act according to his or her insight is substantially diminished, that person acts culpably, but the sentence can be reduced (£ 21 PC). This legislative concept leads to a two-step analysis in cases of possible insanity. As a first step, the court has to establish whether the actor suffered from one of the mental defects named in £ 20 of the Penal Code; often the court will rely on psychiatric expertise in making a finding on this issue. If the presence of a mental defect has been established, the court must ask whether that defect negated the actor’s ability to realize that he or she did wrong or whether he knew that or she did wrong but was unable to control himself or herself sufficiently to avoid the act. This concept inherently builds on the assumption that a “normal” person has some freedom of will that enables that person to refrain from doing wrong. Most writers justify this assumption as being grounded, regardless of its scientific correctness, in the mutual expectations of people in their social interactions.It should be noted that a defendant found to have committed a criminal offense in a state of insanity cannot be convicted of the crime but can be committed to a psychiatric hospital as a measure of rehabilitation and security (£ 63 PC).
3. Intoxication
Intoxication as such does not excuse the perpetrator. However, the influence of alcohol or drugs on the perpetrator’s mind can be so strong as to be classified as a temporary mental disease, thus permitting a finding of insanity in the sense of ££ 20 and 21 of the Penal Code (see section II.E.2 in this chapter). There is no exact amount of alcohol consumption that leads to temporary insanity, but courts tend to apply £ 20 of the Penal Code when a person had, at the time of the offense, a blood alcohol concentration of 0.3 per cent or more. If the perpetrator was unable to control himself or herself or to recognize the wrongfulness of the conduct because of alcohol-induced insanity, the perpetrator will be excused under £ 20 of the Penal Code.
The fact that the actor had voluntarily brought about the state of intoxication does not exclude a finding of temporary insanity because £ 20 of the Penal Code explicitly refers to the “time of the offense” at which a mental disease must exist to negate culpability. There exists, however, a long-standing doctrine that denies exculpation if the offender had voluntarily intoxicated himself with the intent to commit a (defined) crime at the time when he started to get drunk. German theory speaks of actio libera in causa (an act free in its origin). It is questionable, however, whether denying a person the exculpating provided by £ 20 of the Penal Code on the basis of an unwritten rule is compatible with the principle of legality. The Federal Court of Appeals has declared the doctrine inapplicable with respect to offense definitions containing a particular act to be performed by the offender (for example, “Whoever drives a vehicle…” [£ 316 PC]); in such cases it would violate the
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