Summary
Summary Forensic Psychopathology
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This is a summary of the prescribed literature and subjects that have been talked about during the tutorials.
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Forensic Psychopathology SummaryA summary of the things that were discussed in the tutorials and the key elements
of the prescribed literature.
Criminal liability: actus reus + mens rea.
“an act does not make a man guilty, unless the mind his mind is guilty”
Actus reus: guilty act, the offence. (Objective)
o Descriptive level the act is made criminal by criminal law.
o Normative level establishing a link between the person and the
occured criminal harm.
The actus reus can (but not need to) exist of three elements: conduct,
consequences and circumstances.
Mens rea: State of mind of the defendant at the time of the crime. (Subjective)
o Descriptive sense The term simply refers to the different forms of
intention required by a specific offence.
o Normative sense In this way, the term is used to presuppose voluntary
and responsible conduct. The basic premise here is that
criminal law should only punish the guilty (who can be
fairly blamed for the wrongdoing they committed).
Bipartite system: actus reus + mens rea need to be fulfilled and coincide.
Tripartite system: fulfillment of the offence (actus reus + mens rea) +
wrongdoing + blameworthiness.
There are different forms of mens rea:
Intent, which can be divided into three categories:
o Direct intent: highest degree of fault of all levels. This consists of
knowing and wanting (control and choice).
o Indirect intent: this can be said to exist where the defendant
embarks on a course of conduct to bring about a desired result,
knowing that the consequence of his actions will also bring about
another result. State of mind is not aimed directly at the result of
the conduct, but on another result.
o Conditional intent: it requires that the defendant was aware of
the possible side-effects of his actions, but nonetheless accepting
these side-effects.
Recklessness: there has to be an awareness of risk and the
defendant acts in defiance of the risk. Also, recklessness is the case where a
person has given no thought to the existence of an obvious risk.
o Recklessness is considered to be more culpable than negligence.
, Negligence, which can be divided into two categories:
o Concious negligence: the defendant in fact recognizes the real
risk for the protected interest, but underestimates it or
overestimates his own capabilities, trusting that he will not bring
about the offence.
o Unconcious negligence: this is a lack of care, a person does not
think of the possibility that he may bring about the constitutive
facts of the offence.
There are, however, justifications and excuses that take away the criminal
liability of the defendant.
o Self defence
o Self defence excess
o Duress
o Insanity
Free will
“free will is the choice to do otherwise”
Free will is important. If you have free will, it can also be impaired. Which is why
free will is discussed.
There are three standpoints to free will:
o Hard Determinists:
o They say determinism is true and that, therefore, free will is false.
o They believe that everything we do has to do with the laws of
physics and that human behavior is therefore a product of your
genes and your environment.
o Free will and determinism are incompatible.
o Mostly brain scientists.
o Libertarians:
o They say free will exists and therefore consider determinism to be
false.
o Free will and determinism are incompatible.
o Compatibilists:
o They are satisfied with a leaner concept of free will, but still
consider this conception worthy to be considered free will.
Free will worth wanting.
o They believe that determinism and free will can go together and
are thus compatible.
So they believe determinism is right, but that we still have
free will.
, Free will and criminal liability
Do we have free will and should our legal system be changed?
Forensic psychiatrists often need to examine whether or not the perpetrators
free will was impaired. Authors consider the philosophical issues related to free
will relevant to forensic assessment of criminal responsibility. Different authors
have different opinions on this matter, mostly depending on their standpoint
towards the topic of free will.
Greene & Cohen: are hard determinists.
o They say that the legal system should be changed because of the fact that
people do not have free will. Without free will it is not justifiable to hold
people responsible for their actions.
o Basically they say that we are all a puppet/victim of our genes and
life circumstances (environment).
o We should, according to them, get rid of retribution, shift more to
consequentialism is their viewpoint.
o So in this viewpoint we can still punish crimes, but not for
retribution. Only as a form to protect society and to prevent future
crime.
o Consequentialism justifies intuitively unfair forms of punishment.
o Critique on this it is the threat of punishment that is justified
and not the punishment itself. And that consequentialism might
justify letting murderers and rapists off the hook so long as their
punishment could be convincingly faked.
S. Morse: he is a compatibilist.
o He says that determinism is right, but still we have free will; thus free will
and determinism are compatible.
o We should, according to him, not change the legal system. He believes that
criminals should be send to prison, but there are some people that have
limited or no capacity of free will because their free will is impaired
because of some sort of disorder.
o The philosophical issues about free will have nothing to do with
criminal liability. It is whether or not the perpetrator is able to, and
therefore has the rational capacity, to make decisions?
No? rational capacity is impaired excuse for actions.
Yes? they have rational capacity no excuse for actions.
o He speaks about the psycholegal error: biological errors and bad life
circumstances are no excuse for committing a crime. It can only be an
excuse when someone’s rational capacity is impaired (because of for
example a disorder), in which case that someone should be held
criminally liable (thus accountable) for the law.
o Brain abnormalities do not excuse defendant from responsibility. Criteria
of responsibility are behavioral and normative, not the state of the brain.
The brain cannot be held responsible.
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