Simcha Walfish
BCL/LLB III, McGill University Faculty of Law
1 December 2018
The fear of malingering – faking a mental disorder for personal benefit – looms large whenever the possibility arises that a defendant will be found not criminally responsible on account of mental disorder (NCRMD). In 2000, the Supreme Court of Canada warned of a “real danger” that juries would be “unduly skeptical of a ‘defence’ that is often perceived as easy to fabricate and difficult to rebut.”
Many view the defence of mental disorder as a get out of jail free card. In their 2014 overhaul of the NCRMD regime, the Harper government capitalized on perceptions in the media and public opinion that people who invoke the defence of mental disorder are faking their condition, that the defense is overused, and that, once adjudicated NCRMD, they are soon released from custody. Then-Prime Minister Stephen Harper tweeted that: “Brutal cases like Allan Schoenborn & Vince Li undermine confidence in our justice system. Our tough new law would change that.”
Beyond cynical mischaracterizations of the law, the decision by a court to find a defendant not criminally responsible is critical because mental capacity is viewed as a necessary condition for criminal responsibility. In their paper, “Listening to voices: The use of phenomenology to differentiate malingered from genuine auditory verbal hallucinations,” Simon McCarthy-Jones and Phillip J. Resnick note that some claim that auditory verbal hallucination (AVHs) “are the most frequently malingered symptom of psychosis by criminal defendants.” This probe will ask: how do, and how should, courts respond when individuals claim to be hearing voices?
The Premises of Criminal Responsibility
The Premises of Criminal Responsibility In the 2011 case R. v. Bouchard-Lebrun, Justice Lebel writes that, “it would be unfair in a democratic society to impose the consequences and stigma of criminal responsibility on an accused who did not voluntarily commit an act that constitutes a criminal offence.” However, the law has adhered to a philosophy of criminal responsibility that posits a sharp distinction between cognition and volition and prioritizes the former. The law asks less whether an individual chose to act and more whether they knew the physical consequences or moral wrongfulness of what they were doing.
The Criminal Code codifies this principle in what is now called the “defence of mental disorder”:
16 (1) No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.
As Simon Verdun-Jones notes, s. 16 “has been interpreted in such way as to focus on cognition, rather than volitional, factors.” Under the M’Naghten framework, the question is more about whether the defendant knew what they were doing than whether they had a real choice about their actions. Canada has consistently declined to follow the path of other jurisdictions in recognizing a doctrine called “irresistible impulse” which would apply the defence of mental disorder to those who had no control over their actions. Objections to the doctrine have persisted even though the Supreme Court has, in the context of duress, ruled that the concept of ‘moral voluntariness’ is principle of fundamental justice under section 7 of the Charter. Steven Penney notes that courts and legislators have concluded that “whatever the theoretical merits of the defence, in practice it is too difficult to distinguish between impulses that could and could not have been resisted.”
In a leading case on NCRMD, the Supreme Court rejected the claim that the accused was not responsible due to an “inner pathological process at work that can prompt him to exhibit a form of behaviour that is unacceptable, dangerous, violent and so on.” The Court held that because the accused was still “able to distinguish between right and wrong” he was “technically sane” and could be convicted.
Evidence of Auditory Verbal Hallucinations (AVHs)
The fact of hearing voices is not enough to render an individual NCRMD. The voices, or another aspect of a mental disorder, must have rendered the individual “incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.”
Since the evidence for a mental disorder lies largely within the mind of the accused, the court’s main question is whether the accused should be believed. The courts begin with an attitude of skepticism. Per section 16(2), “Every person is presumed not to suffer from a mental disorder.” Further, the DSM-5 cautions clinicians that the “intentional production of false or grossly exaggerated physical or psychological symptoms, motivated by external incentives” should be “strongly suspected” in the context of criminal proceedings.
The decision of whether to accept that a person has really heard voices is a legal, not a medical question. The courts have long recognized that, “The term ‘disease of the mind’, though it contains a substantial medical component, is a legal concept” and its determination is left up to the judge. Experts play a large role in the NCRMD process but, as English judge Devlin J. stated in the 1957 case R v Kemp, “Doctors’ personal views, of course, are not binding upon me.”
The problem is that courts do not always have the proper tools to answer the crucial question of whether whether an individual is malingering or truly hearing voices. Simon McCarthy-Jones and Phillip J. Resnick argue that “While the existence of malingered AVHs naturally focuses attention on preventing miscarriages of justice resulting from malingered AVHs going undetected, there is also the danger of injustice resulting from someone who has genuinely experienced AVHs being incorrectly labeled a malingerer.”
McCarthy-Jones and Resnick argue that some contemporary criminal trials are still employing “an incorrect understanding of the phenomenology of AVHs.” Judges, led by expert opinions or conflicting expert opinions, can judge the veracity of AVHs based on misunderstandings of how voices are heard. For example, judges will sometimes rule that a person was malingering because their description of the voices does not conform to the “typical” accounts of AVHs.
McCarthy Jones and Resnick examine Jefferson, a 2004 California appellate court decision. Jefferson was on trial for punching and kicking several correctional officers, his third offence. Under California’s “three strikes” rule, he faced 50 years in prison.
Jefferson told the court-appointed psychologist that during the two incidents at issue, he heard voices “in his ear” of “people that he knew in the past.” But the psychologist believed he was malingering, since, in her experience, “schizophrenics typically described voices “as coming from inside their head and being of either famous people or strangers or groups of people.” Jefferson’s appeal was dismissed.
But, McCarthy Jones and Resnick argue, the research “does not support the claim that internally-located voices are emblematic of genuine AVH, and externally-located voices are atypical.” Nor does it support the claim that the voices must be those of famous people. In their opinion, the court relied on an account by a psychologist who failed to understand the diversity of AVHs. Merely hearing voices “in the ear” rather than “in the head” does not mean that the symptoms were invented.
Instead of seeking a single “yardstick to assess the validity of a claimed AVH,” McCarthy Jones and Resnick argue that clinicians and courts need to better understand the phenomenology of AVHs and the “heterogeneity of the experience.” They conclude that what is now needed is “a reliable and valid psychometric tool that can be used to assess the validity of an individual’s claims to have had experienced AVHs.”
“Seeing Voices” – the Promise of Neuroscience?
Given that we cannot get inside the defendant’s mind to hear the voices they may hear, neuroscience raises the possibility that we might soon enter and see. Per Jane Moriarty:
If future neuroimaging were able to provide biological proof of the auditory hallucinations using functional imaging, for example, fact-finders might be less distrustful of the behavioural science experts who testify about the defendant’s serious mental illness.
The promise of neuroscience is that it “may more accurately explain the relationship among brain lesions (or illnesses), cognition, impulsivity, and behavioural control.” Moriarty suggests that if the relationship “between thoughts and actions in the seriously mentally ill or injured” were better understood, it would be “possible to redraw the map of legal insanity in a way that better comports with scientific knowledge, rather than simply following the long-standing separations of cognition and volition.”
But the approach is also risky. Even beyond the much-discussed concerns about how neuroscience may introduce a determinism that undermines the law, there is a risk that this approach will dazzle courts with flashy evidence that may be less conclusive than it seems. And, as Moriarty notes, a scan cannot “prove that the defendant thought the voices were real, that she heard them at the time of the incident, or whether she honestly believed she had to obey the voices.”
Critical psychologist Lisa Blackman’s work provides a more fundamental critique of the promise of neuro-imaging to ‘solve’ the problem of hearing voices. For Blackman, this line of thinking is the symptom of an “increasing cognitivism being brought to bear upon the voice hearing experience.” The idea that the question of hearing voices could be answered by brain imaging “is in danger of reifying the mind as brain and approaching the brain as a static entity that can be isolated, studied and underpinned by brain imaging scans and technology.”
Blackman and Valerie Walkerdine interrogate the paradigm in which the legal system turns individuals into scientific subjects, leaving judges to choose between the binary of “mad/bad.” They argue that this paradigm assumes an “image of the rational subject” and judges the accused against it. This universal image, “which also functions as the marker of legal subjectivity is, however, gendered, raced and classed.” They reject the idea that guilt or innocence could be adjudicated by a brain scan. They further reject the idea that hearing voices “signify that people are out of control, outside of the normal bounds of ethical conduct. They are no longer responsible to themselves and others, and are unable to maintain the requirements of citizenship.” For Blackman, the treatment of voices as something “to be predominantly understood as a pseudo-sensory by-product of the brain, to be responded to with neuroleptic drugs and primarily to be ignored by the voice hearer, professionals, family and friends” is a recent construction, which is radically contingent on contemporary rationality. By contrast, as Blackman and Walkerdine point out, throughout history, hearing voices has had different meanings. For well-known voice-hearers throughout history like Joan of Arc and St. Theresa of Avila, hearing voices was not seen as a sign of illness. It is only today that the phenomenon of hearing voices has been reduced to a symptom of a “discrete disease entity, schizophrenia.” In the view of current psychiatric discourses, hearing voices is exclusively pathological, based on a cerebral abnormality like enlarged lateral ventricles. In psychiatric discourses, this “is not merely a particular cultural-historical perspective on the meaning of hearing voices but is one grounded in truth, objectivity and reason.”
With psychiatrists urging the courts to better understand the heterogeneity of AVHs,neuroscientists promising to show the court picture-proof, and critical psychologists calling for a better understanding of how hearing voices has been constructed as a pathology, the challenge for the courts will remain how to make a legal, rather than a medical determination about criminal responsibility. After all, as Justice Dickson wrote in Rabey, “What is disease of the mind in the medical science of today may not be so tomorrow.”
All links accessed on June 15, 2018
Further reading
50-to-life: Why the phenomenology of ‘hearing voices’ matters blog post by Simon McCarthy-Jones
Two simple questions that have changed the way people hear inner voices by Simon McCarthy-Jones
Hearing the Unheard: An Interdisciplinary, Mixed Methodology Study of Women’s Experiences of Hearing Voices (Auditory Verbal Hallucinations) by Simon McCarthy-Jones, Maria Castro Romero, Roseline McCarthy-Jones, Jacqui Dillon, Christine Cooper-Rompato, Kathryn Kieran, Milissa Kaufman, and Lisa Blackman.
Hearing Voices: CBC Tapestry
NCR: Not Criminally Responsible, a documentary by John Kastner
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