Deficient Spanish current legislation about no-liability by mental illness
DECEMBER 19th, 2013
The Spanish legislation on no-liability by mental illness is basically constituted
by Article 20 of Criminal Code which states: "Are exempt from liability:
Firstly, who at the time of committing offense has any mental impairment, being
unable to understand the wrongfulness or being unable to act on that
such redaction, Spanish legislation considers all psychoses as cause of
not-imputableness, being enough a psychiatric assessment determining the
cognitive or volitional incapacity based on symptoms such as hallucinations and
having hallucinations and/or delusions is not synonymous at all of volitional
or intellectual disability, as traditionally is admitting the Spanish criminal
law. We will discuss this in detail later, but it is of common sense that I can
have hallucinations with delusional conviction without implying any alteration
of my cognitive and volitional capacity.
example: Virgin Maria appears me each morning and says me: "Be good".
I am convinced of the reality of this hallucinatory-delusional experience. But,
in despite of these psychotic symptoms, I preserve intact my cognitive and
contrary, it may be Lucifer who urges me every morning to do evil, but this
hallucinatory-delusional experience does not interfere at all in my cognition
and/or volition: if I commit a crime is my responsibility and not the Lucifer´s
delusional hallucinatory state alone does not indicate anything about the
possible criminal responsibility of a person, unless other psychic alterations
concur a same time.
order to get a more complete information about this matter, people living in
English-speaking countries might read the next links:
In Latin-speaking countries laws about
no-liability by psychiatric disorder are less strict than in English-speaking
countries. With an imprecise law which, furthermore, the courts apply in a very
tolerant way, psychiatrists, forensics and judges cover their backs, and when
they doubt about possible not-liability of psychiatric patient, they decide to
hospitalize him and put him under psychiatric treatment against his will.
In fact, criminal Spanish legislation is
so vague that is sufficient the suspicion that the subject was acting under the
influence of hallucinations and / or delusions, without specifying how it
affected consciousness state. So, psychiatrists, forensics and judges proceed to
hospitalize any person with a previous diagnosis of psychosis at the slightest
doubt if at that time can be active such.
And it is understandable that they act on
this way with the current legislation on this subject, because if the person
that had not been hospitalized commits a crime, this offence will be imputed to
the psychiatrists, forensics or judges that prevented the forced
We denominate these actuations “defensive
involuntary hospitalizations” because the main reason to do it, is not the
health of patient, but the necessity of psychiatrists, forensics and judges to
protect themselves regarding possible criminal acts carried out by this
Oppositely, we term “therapeutic
involuntary hospitalizations” those in which psychiatrists ask a forced
hospitalization because they think the patient needs it urgently because of his
critical mental state. For example, when a psychiatrist assesses a
patient suffering a confused state, either by somatic cause or psychic, and the
patient does not accept this decision, the doctor asks an involuntary
hospitalization because the grave state of patient requires it.
In these cases, specialists are absolutely
not thinking in their own security but in the health of patient. But, in
defensive hospitalizations, participant professional are mostly thinking in
their security instead of in patient’s health.
Psychiatric patients who suffer “defensive
involuntary hospitalization” normally become chronic and irrecoverable mentally
ill. In these cases Psychiatry is more harmful than useful. This kind of
hospitalization constitutes the main handicap of psychiatry, and, meanwhile
this blight do not be removed, this medical speciality will continue socially
looked down upon.
A delusional hallucinatory state alone
does not indicate anything about the possible criminal responsibility of a
person, unless the experts may determinate that this psychotic state is
impairing the consciousness in such way that the cognitive and/or volitional faculties
are abolished. In fact, Criminal Codes of some countries (Germany, Switzerland,
etc) specify that consciousness must be impaired at the moment to commit the
In Spanish case the solution is easy: it
is enough to slightly modify the current redaction of article 20 of Criminal
Code, adding the words "had a confused state of consciousness". So,
this article would become written up in the next way: "To be exempt
from criminal liability. 1 who at the time of committing the offense it can be
shown that, because of any defect or mental disorder, had a confused state
of consciousness that prevented him from understanding the wrongfulness
of the act or act on that understanding "
To find a precise definition of
consciousness can be difficult, but to determinate a confused state of
consciousness, and if this confusion is strong enough to abolish the cognitive
and/or volitional capacity of the patient, is an easy task to psychiatrists and
neurologists by means of clinical evaluations. By way of example, it is very
easy to differentiate consciousness during a dream of usual awareness being
awake. On the same way, it is very easy to discriminate the consciousness
during a delirium of usual awareness.
This small modification above cited of
Article 20 of Criminal Spanish Code would eliminate 100% of “defensive
hospitalizations”, and the Psychiatry would earn much credibility.
In conclusion, we believe it is necessary to promote
international awareness campaign on this issue, and in the criminal law of all
countries of the world must to explicit the existence of a confused
consciousness as an indispensable condition of non-liability