The application of the convention on the rights of persons with disabilities to the insanity defence and dispositions

Abstract

This thesis offers a study of the insanity defence and its disposition orders as viewed through the lens of the Convention on the Rights of Persons with Disabilities (CRPD). It is about the rights of people with mental disabilities who have committed the physical elements of a crime, but are absolved of criminal responsibility on the basis that they did not know the nature or quality of the act, or if they did know, they did not know that what they were doing was wrong. The thesis offers an analysis of the doctrine of insanity and the institution of criminal responsibility from the perspective of disability rights. The thesis is divided into two parts. The first part considers the insanity defence, the disposition orders which attach, and the way that these phenomena can perpetuate discrimination against the category of defendants to whom insanity applies. I argue that as an institution, the criminal justice system is premised on a notion of capacity-responsibility which situates disability as the other, and constructs a lesser notion of personhood for those defendants who are unable to conform their behaviours to normative standards of responsibility. By direct reference to the CRPD and the guidance put out by the CRPD Committee, the second part of the thesis shows how the institution of criminal justice discriminates against defendants in ways that are specific to mental disability. On the basis of an assessment of mental incapacity, the insanity defence denies that this category of people have the legal capacity to be held responsible for their actions. This constructs a lesser notion of personhood and situates the criminalised disabled body as the other. However, this analysis also brings understanding of the limits of the CRPD Committee’s interpretation of legal capacity. I argue that in calling for the recognition of universal legal capacity, the CRPD Committee constructs a ‘thin’ notion of autonomy which sees all variations of decision-making as value neutral. The CRPD Committee’s emphasis on equal legal capacity fails to grapple with the way that criminal responsibility is based on an ableist construct of normative functioning. It is my argument that the CRPD Committee’s interpretation of legal capacity and subsequent construction of autonomy, does not challenge the structural injustice which embeds oppression of the criminalised disabled body as a political identity. As such, though acknowledging the significant gains made by the CRPD, the thesis concludes by searching for new ways of conceptualising responsibility that will challenge the structural injustice perpetuated by the institution of criminal justice against people with mental disabilities.