Insanity and Its Contents

(1) Do you prefer any one of the insanity tests you have learned about over the others? Why?
(2) Is there an instance from the media or fiction where the insanity defense was raised? Was it successful? Did you agree with the outcome? Why or why not?
(3) Write your own fact pattern involving the insanity defense, and then describe whether you think it should apply (specific which test(s) you are using) and why.

I.

I prefer the MPC (Model Penal Code) insanity test, because it seems to me that it does—as intended—soften and broaden some of the well-meaning but impractical language of the M’Naghten test and the Irresistible Impulse test.

II.

In 1991, an expert witness—a female gynecologist—testified that a female orthopedic surgeon’s behavior was “consistent with PMS,” when the female surgeon sexually assaulted a male police officer, with intent to injure his genitals, after failing a sobriety test while pulled over in her car for driving recklessly with her kids in the car.[1] The she-surgeon successfully raised a PMS-based claim of not guilty by reason of temporary insanity—consistent with a paraphrase of that old adage: “there is never an excuse for a man to hit a woman—but there are several excuses for a woman to endanger the lives of her kids, then kick a he-cop in the crotch.”

I agree with the acquittal, because the court used the sound logic of gender-based pity to absolve a woman of accountability for child-abuse and her sexual violence against a man. More generally, there is a matter of public policy, which courts are allowed to consider as a basis for their rulings: if courts held abusive mothers and sexually violent women to the sexistly objective standards of not abusing children or attacking men and police: where would that sexism end? Extending from a slippery slope policy of “women cannot kick guys and cops in the crotch,” we could next see sexistly meaningful enforcement of laws against child abuse or child endangerment—where such gender-neutral (and race-neutral) enforcement would be sexist (and racist) because it would disparately impact the women who abuse or neglect children (especially women other than women without color).

Instead of this slippery slope of outdated patriarchal oppression, I think it is important to follow the progressive lead of California—which reduced rape-by-deception of men, from a felony to a misdemeanor, because California’s laws against having sex with someone while withholding, from them, one’s status as infected with a deadly disease: the enforcement of these laws was disparately impacting the women who were committing the rape-by-deception.[2]

As a matter of policy, when feminist justice arises by absolving a woman of accountability for her abuse of children or her sexual violence against men—that justice “lifts all boats,” as when, in California, the law that mitigated women’s rape of men by deception—the same law also decriminalized “[t]he act of knowingly donating HIV-infected blood.”[3] This decriminalization ended bigoted, homophobic laws that were disparately impacting those members of the LGBTQ+ community who were knowingly donating HIV-infected blood. And this LGBTQ+ justice may, in turn, reduce the current homophobic stigma against LGBTQ+ “bug chasers,” who seek to be infected with AIDS, as well as the “gift givers” who seek to grant bug chasers their wish.[4]

Thus, as a matter of intersectional policy, justice unfolds for all by the seed of justice for women. (And eventually, if such intersectional justice persists and permeates thoroughly enough, then it will be only a misdemeanor—or less—when a “down-low brother,” in Atlanta and beyond, dooms a black mother—without her knowledge or consent—to a short life of fear and sadness, and an early, painful death from sexual disease.[5]

Notes

  1. The Baltimore Sun, Successful PMS defense in Virginia case revives debate (1991), available at https://www.baltimoresun.com/news/bs-xpm-1991-06-16-1991167033-story.html.
  2. See Eli Rosenberg, Knowingly exposing others to HIV is no longer a felony in California (Washington Post, 2017), available at https://www.washingtonpost.com/news/to-your-health/wp/2017/10/09/knowingly-infecting-others-with-hiv-is-no-longer-a-felony-in-california-advocates-say-it-targeted-sex-workers/.
  3. Ibid.
  4. See, e.g., Christian Grov, et al., Bug Chasing and Gift Giving: The potential for HIV transmission among barebackers on the internet (NCBI, 2006), available at https://pubmed.ncbi.nlm.nih.gov/17166076/.
  5. See generally CL Ford, et al., Black sexuality, social construction, and research targeting ‘the Down Low’ (‘the DL’) (NCBI, 2007), available at https://pubmed.ncbi.nlm.nih.gov/17320787/.)

III.

The U.S. military drafted John Doe into war after Doe failed to get into the University of Texas Law School (after his prior place at the school was instead given to Sarah Weddington, a non-male, draft-exempt law-school-applicant who killed her child in Mexico in order to stay in school and fight for women’s right to kill their kids to stay in school). During his conscription in war, Doe developed PTSD. When Doe returned from war, he was pulled over in his car by police for driving suspiciously. The female police officer administered a sobriety test to Doe, which he passed. The female officer then attempted to arrest Doe for impeding her investigation by talking back to her—but Doe sexistly pulled his arm away from the arresting officer gently, which sprained both the officer’s wrists and caused the officer to fall to the ground and onto her cotton. In her arrest report, the officer said that Doe then said, “nice tits” to the officer while, according to the officer, “looking at me with rape in his eyes.” The officer alleges that Doe’s perverted language justifies raising Doe conduct from assault and battery to sexual assault and sexual battery. Upon arraignment for sexual assault and sexual battery on a police officer, with an aggravating circumstance that the officer was not a man, Doe raised the defense of temporary insanity—arguing that he only resisted the officer’s overreaction and unlawful arrest because he was temporarily insane, due to his PTSD.

Does Doe have a defense against sexual assault and sexual battery by reason of temporary insanity?

The MPC rule to test insanity is fairest because it incorporates both the M’Naghten test and the Irresistible Impulse test, while improving the criteria of both through subtlety of language. For a person to be not guilty by reason of insanity, they must be able to appreciate the badness of their act—and must not be a consistently violent person, i.e. a psychopath.

Here, I do not think an insanity defense should apply because such defenses expressly do not apply to psychopaths—people who have a history of violent behavior. Doe was a former soldier; soldiers are generally violent, and so Doe was likely violent during his time in the military. Thus, Doe’s time in the military suggests a likelihood of Doe’s tendency towards psychopathy. Then Doe’s tendency for violence manifested again when Doe violated the Violence Against Women Act by sexually assaulting and sexually battering the female officer, whereupon Doe further evinced psychopathy by cunningly seeking pity and mitigation for his supposed PTSD—even though no research suggests that PTSD causes the kind of misogyny that manifests when a man uses his male privilege to sexually assault and sexually batter an innocent woman—much less a female police officer.

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